United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO.
PAMELA PEPPER United States District Court Judge.
plaintiff, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983, alleging that
defendants T. Moon and Sgt. Tritt violated his civil rights by
destroying fourteen photographs of him and his mother. Dkt.
No. 1. This decision resolves the plaintiff's motion for
leave to proceed without prepayment of the filing fee, dkt.
no. 2, and screens his complaint, dkt. no. 1.
Motion for Leave to Proceed without Prepayment of 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.
January 29, 2018, the court ordered the plaintiff to pay an
initial partial filing fee of $3.31. Dkt. No. 4. On March 21,
2018, the court received that partial filing fee from the
plaintiff. Therefore, the court will grant the
plaintiff's motion for leave to proceed without
prepayment of the filing fee, and allow him to pay the
remainder of the 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, 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. Cty. 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
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 has been incarcerated since August 2009, shortly
after he graduated from high school. Dkt. No. 1 at 2. In
November 2009, he learned from his mother during a phone call
that she had cancer. Id. He received a number of
photographs of him and his mother in February 2012.
Id. In December 2013, he learned that the doctors
gave his mother only six months to live; she died from
complications of cancer in March 2014. Id. at 3.
plaintiff explains that in December 2015, he was confined in
the restricted housing unit at New Lisbon Correctional
Institution, and was being processed for a transfer to Waupun
Correctional Institution, where he currently is housed.
Id. Under the Division of Adult Institutions policy,
correctional officers inventoried all of his property before
the transfer. Id. Correctional Officer Waterman (who
is not a defendant) listed forty-eight photographs on the
plaintiff's document form (DOC 236). Id.
According to the plaintiff, Waterman placed the photographs
in a box, along with the plaintiff's other property, and
sealed the box for shipping to Waupun. Id.
plaintiff arrived at Waupun on December 16, 2015.
Id. The plaintiff states that Waupun property
officers inventoried the plaintiff's possessions and
indicated that the plaintiff had sixty-four photographs.
Id. The plaintiff alleges that Department of
Corrections policy limits inmates to fifty photographs; he
alleges that, for ...