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Lampley v. Latour

United States District Court, E.D. Wisconsin

March 27, 2018

STEVEN LAMPLEY, Plaintiff,
v.
OFFICER LATOUR, DR. SCHWARTZ-OSCAR, SERGEANT ROSMERINOUSKI, KATHY LEMMONS, AND CO JOHNSON, Defendants.

         ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, DENYING AS MOOT PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO SUBMIT TRUST ACCOUNT STATEMENT (DKT. NO. 5), AND DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 11)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         Plaintiff Steven Lampley is a Wisconsin state prisoner representing himself. He filed a civil rights complaint alleging that the defendants violated his constitutional rights related to a suicide attempt. Dkt. No. 1. This order resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee, screens the plaintiff's complaint, denies as moot the plaintiff's motion for extension of time to submit his institution trust account statement and denies his motion to appoint counsel.

         A. Motion to Proceed Without Prepaying the Filing Fee (Dkt. No. 2)

         The Prison Litigation Reform Act applies to this case because the plaintiff is incarcerated. 28 U.S.C. §1915. The law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the civil case filing fee, as long as he meets certain conditions. Id. One of those conditions is a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         The plaintiff submitted his trust account statement on August 31, 2017. Dkt. No. 7. On September 1, 2017, Magistrate Judge Duffin issued an order finding that the plaintiff lacked the funds to pay an initial partial filing fee, and waiving that fee. Dkt. No. 8; 28 U.S.C. §1915(b)(4). Judge Duffin's September 1, 2017 order also gave the plaintiff an opportunity to dismiss the case voluntarily, so that he could avoid incurring a “strike” for filing a frivolous or unfounded lawsuit. Dkt. No. 8. The plaintiff has not moved to dismiss the case.

         Because the plaintiff did not consent to the magistrate judge handling this case, the clerk's office reassigned it to this court on September 8, 2017. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filling fee and will allow the plaintiff to pay the $350.00 filing fee over time from his prisoner account, as described at the end of this order.

         B. Screening of the Plaintiff's Complaint

         1. Standard for Screening Complaints

         The Prison Litigation Reform Act requires federal courts to screen complaints brought by prisoners seeking relief against a governmental entity, or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). A court may dismiss a case, or part of it, if the claims alleged are “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B).

         To state a claim under the federal notice pleading system, a plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific facts, and need only provide “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Labels and conclusions” or a “formulaic recitation of the elements of a cause of action” will not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         The factual content of a complaint must allow a court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Indeed, allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.

         Federal courts follow the two-step analysis in Twombly to determine whether a complaint states a claim. Id. at 679. First, a court determines whether the plaintiff's legal conclusions are supported by factual allegations. Id. Legal conclusions not supported by facts “are not entitled to the assumption of truth.” Id. Second, a court determines whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.

         To state a claim that a state actor violated his constitutional rights under 42 U.S.C. §1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). A court gives pro se allegations, “however ...


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