United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Motion for Leave to Proceed without Prepayment the Filing Fee
(Dkt. No. 2)
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.
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.
Screening the Plaintiff's Complaint
Federal Screening Standard
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).
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).
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,
The Plaintiff's Allegations
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.
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 ...