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Little v. Moon

United States District Court, E.D. Wisconsin

May 14, 2018

ANTUAN VALENTINO LITTLE, Plaintiff,
v.
T. MOON and SGT. TRITT, Defendants.

          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. 1)

          HON. PAMELA PEPPER United States District Court Judge.

         The 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[1] 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.

         I. Motion for Leave to Proceed without Prepayment of 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 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

         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, 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. 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, 106 (1976)).

         B. The Plaintiff's Allegations

         The 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.

         The 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.

         The 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 ...


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