United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
Brian DeMarco Mitchell, who is incarcerated at Stanley
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that Defendants
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $8.00. See 28
U.S.C. § 1915(b)(1).
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109- 10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant 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)). However, a complaint that offers mere
“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). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. Section 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged
to give the plaintiff's pro se 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 in April 2016 he was arrested by Defendants, all
members of the Appleton police department, as part of a
prostitution sting. (Docket #1 at 4-8). Plaintiff was
detained for about an hour. Id. It does not appear
that Defendants possessed a warrant for Plaintiff's
arrest. Id. Plaintiff asserts that the officers did
not have reasonable suspicion to detain him or probable cause
to arrest him. Id. Plaintiff was charged with human
trafficking in Outagamie County Circuit Court, but the
charges were later dismissed by the state. Id.
may proceed against Defendants for their alleged violation of
his Fourth Amendment right to be free of unreasonable
seizures. Police may engage in investigatory stops of
citizens, known as Terry stops, when they have
“reasonable suspicion that criminal activity is
afoot.” Matz v. Klotka, 769 F.3d 517, 522 (7th
Cir. 2014); Terry v. Ohio, 392 U.S. 1 (1968).
Further, “[a] warrantless arrest is constitutionally
permissible if supported by probable cause.” United
States v. Paige, 870 F.3d 693, 699 (7th Cir. 2017). If a
person is subjected to a Terry stop which is not
supported by reasonable suspicion, or a warrantless arrest
not supported by probable cause, he may bring a claim for
violation of his Fourth Amendment rights. Matz, 769
F.3d at 522-27; Bentz v. City of Kendallville, 557
F.3d 776, 779 (7th Cir. 2009). Plaintiff alleges that
Defendants could not have had reasonable suspicion or
probable cause in light of his benign behavior. Whether the
evidence bears this out is a matter for another
the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Defendants'
unreasonable seizure of Plaintiff, in violation of the Fourth
Amendment, in April 2016.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #2) be and the same is
IS FURTHER ORDERED that the United States Marshal
shall serve a copy of the complaint and this order upon the
defendants pursuant to Federal Rule of Civil Procedure 4.
Plaintiff is advised that Congress requires the U.S. Marshals
Service to charge for making or attempting such service. 28
U.S.C. § 1921(a). The current fee for waiver-of-service
packages is $8.00 per item mailed. The full fee schedule is
provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
Although Congress requires the court to order service by the
U.S. Marshals Service precisely because in forma
pauperis plaintiffs are indigent, it has not made any
provision for these fees to be waived either by the court or
by the U.S. Marshals Service;
IS FURTHER ORDERED that Defendants shall file a
responsive pleading to the complaint;
IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account
the balance of the filing fee by collecting monthly payments
from Plaintiff's prison trust account in an amount equal
to 20% of the preceding month's income credited to
Plaintiff's trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds
$10 in accordance with 28 U.S.C. § 1915(b)(2). The
payments shall be clearly identified by the case name and
number assigned to this action. If Plaintiff is transferred
to another institution, ...