United States District Court, E.D. Wisconsin
DECISION AND ORDER SCREENING PLAINTIFF'S
JOSEPH, UNITED STATES MAGISTRATE JUDGE.
Lee Ferguson, III, a prisoner who is representing himself,
filed a complaint under 42 U.S.C. § 1983, alleging that
the defendants violated his civil rights. Not all parties
have had the opportunity to fully consent to magistrate judge
jurisdiction under 28 U.S.C. § 636(c). Nonetheless, the
court has jurisdiction to screen the complaint under the
Wisconsin Department of Justice's limited consent to the
exercise of magistrate judge jurisdiction as set forth in the
Memorandum of Understanding between the Wisconsin Department
of Justice and this court.
to Proceed without Prepayment of the Filing Fee
Prison Litigation Reform Act gives courts discretion to allow
prisoners to proceed with their lawsuits without prepaying
the $350 filing fee, as long as they comply with certain
requirements. 28 U.S.C. § 1915. One of those
requirements is that the prisoner pay an initial partial
filing fee. On March 19, 2018, I ordered Ferguson to pay an
initial partial filing fee of $17.27. He paid that fee on
March 26, 2018. Accordingly, I will grant Ferguson's
motion. He must pay the remainder of the filing fee over time
in the manner explained at the end of this order.
of the Complaint
law requires that I 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).
I must dismiss a complaint or portion thereof if the prisoner
has raised claims that are legally frivolous or malicious,
that fail to state a claim upon which relief may be granted,
or that seek monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b).
state a claim, a complaint must contain sufficient factual
matter, accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows a court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
proceed 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
defendant was acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see
also Gomez v. Toledo, 446 U.S. 635, 640 (1980). I will
give a pro se plaintiff's allegations,
“however inartfully pleaded, ” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
alleges that “they locked [him] up on hearsay and once
[his] D.N.A. results came back it then proved [he] was
innocent . . . .” Docket # 1 at 3. Ferguson asserts
that, despite this, “the District Attorney and the
Judge extended [his] case for another 90 days knowing that
[he's] innocent.” Id. Ferguson states,
“This is a hearsay claim with no evidence to prove that
[he is] guilty and the evidence reflects that [he is]
innocent.” Id. at 4.
dismiss Ferguson's case because he fails to state a claim
upon which relief can be granted. Both Milwaukee County
Circuit Court Judge Mark Sanders and Milwaukee County Deputy
District Attorney Matthew Torbenson have absolute immunity
from federal tort liability for acts they commit within the
scope of their employment. See Fields v. Wharrie,
740 F.3d 1107, 1111 (7th Cir. 2014). DDA Torbenson's
recommendation that Ferguson's case be continued for
ninety days and Judge Sanders' order to continue the case
for ninety days are well within the scope of their
employment; thus, those actions cannot form the basis of a
civil rights lawsuit. Ferguson is also barred from suing the
State of Wisconsin because the States have absolute immunity
from civil rights lawsuits under the Eleventh Amendment.
Will v. Michigan Dept. of State Police, 491 U.S. 58,
THEREFORE, Ferguson's motion for leave to proceed without
prepayment of the filing fee (Docket # 2) is GRANTED.
FURTHER ORDERED that this case is DISMISSED under 28 U.S.C.
§§1915(e)(2)(B) and 1915A(b)(1) because the
complaint fails to state a claim.
clerk of court will document that Ferguson has incurred a
“strike” under 28 U.S.C. § 1915(g) ...