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Strong v. Wisconsin Department of Administration

United States District Court, E.D. Wisconsin

April 30, 2018

DENNIS STRONG, Plaintiff,
v.
WISCONSIN DEPARTMENT OF ADMINISTRATION, KATHLEEN KALASHIAN, WISCONSIN DEPARTMENT OF CORRECTIONS, AARON SABLE, ROGER NEVEAU, and CHAD CORRIGAN, Defendants.

         ORDER SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1), GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING AS MOOT PLAINTIFF'S MOTION TO AMEND RELIEF (DKT. NO. 9), AND DISMISSING CASE WITHOUT PREJUDICE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. This decision resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, screens his complaint, dkt. no. 1, and resolves his motion to amend relief, dkt. no. 9. It also dismisses his case without prejudice, because the case is premature.

         I. Motion for Leave to Proceed without Prepayment the Filing Fee (Dkt. No. 2)

         The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his case without prepaying the civil case filing fee, as long as he meets certain conditions. One of those conditions is 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.

         On December 21, 2017, the court waived the initial partial filing fee. Dkt. No. 5. Therefore, the court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee. He must pay the $350 filing fee over time in the manner explained at the end of this order.

         II. Screening the Plaintiff's Complaint

         A. Federal Screening Standard

         The law requires the court 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). The court must dismiss a complaint if the plaintiff raises 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).

         To 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).

         To state a claim 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). The court gives 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, 106 (1976)).

         B. The Plaintiff's Allegations

         The plaintiff alleges that on June 3, 2013, the Outagamie Circuit Court imposed and stayed a sentence, and place him on probation, in State of Wisconsin v. Strong, Case No. 2011CF000005 (Outagamie Circuit Court). Dkt. No. 1 at 7. (See State v. Strong, Case No. 2011CF000005 (Outagamie Circuit Court), located at https://wcca.wicourts.gov). He says that on March 21, 2017, the Wisconsin Department of Corrections (DOC) issued an “Order to Detain” the plaintiff to the Outagamie County Jail, based on alleged probation violations. Id. The plaintiff says that he made a “timely and colorable claim to have not committed violation of the conditions upon which Strong is at liberty.” Id. Defendant DOC Agent Chad Corrigan subsequently served the plaintiff with a “Notice of Violation, Recommended Action, Statement of Hearing Rights and Receipt Document.” Id. The Statement of Hearing Rights stated that the plaintiff was entitled to a preliminary revocation hearing and an attorney. Id. at 8.

         The plaintiff alleges that he “timely sought to exercise the right to counsel as entitled in the revocation action.” Id. On April 17, 2017, following a preliminary revocation hearing, DOC Magistrate Michelle Davis prepared a document that stated that she had found probable cause to recommend revocation of the plaintiff's probation, and that ...


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