United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Motion to Proceed Without Prepaying the Filing Fee (Dkt. No.
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.
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.
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.
Screening of the Plaintiff's Complaint
Standard for Screening Complaints
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.
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).
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.
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.
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 ...