United States District Court, E.D. Wisconsin
JESSE A. DAUL, Plaintiff,
AMIE MALCHOW, Defendant.
DECISION AND ORDER
ADELMAN UNITED STATES DISTRICT JUDGE.
plaintiff Jesse Daul filed a complaint alleging that the
defendant violated his civil rights. This order resolves
plaintiff's motion to proceed without prepayment of the
filing fee and screens his complaint.
Prison Litigation Reform Act (PLRA) applies to this case
because plaintiff was incarcerated when he filed his
complaint, although he has since been released. The PLRA
gives courts discretion to allow plaintiffs to proceed with
their lawsuits without prepaying the $350 filing fee, as long
as they comply with certain requirements. 28 U.S.C. §
1915. One of those requirements is that the plaintiff pay an
initial partial filing fee.
currently has more than ten cases pending before me. On April
30, 2018, plaintiff filed a letter in at least two other
cases, asserting that he is unable to pay an initial partial
filing fee. He explained that he is homeless and unemployed
and is not receiving any assistance for food, housing, or
transportation. Based on the information in that letter, I
find that plaintiff has neither the means nor the assets to
pay an initial partial filing fee, so I will waive the
requirement that he pay one. I will grant plaintiff's
motion to proceed without prepayment of the filing fee, but
he must pay the $350 filing fee, as he is able.
law requires that I 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).
I 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. 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).
proceed 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). I will
give 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,
alleges that, in 2017, while he was on supervised release, he
went to the Wisconsin Department of Workforce Development
office where he had an “outburst.” Docket No. 1
at 1. Plaintiff alleges that the defendant, who was working
as a “security cop, ” falsified a statement about
the outburst because “none of the witnesses of this
outburst wanted to make a statement.” Id.
Plaintiff alleges that, as a result of the statement, he had
to serve an additional thirteen months in prison.
the complaint liberally, it appears to allege that the
defendant was working for the Department of Workforce
Development and therefore was acting under color of state law
when she prepared the allegedly fabricated statement. Thus, I
will allow the plaintiff to proceed on a due-process claim
based on his allegation that the defendant deliberately
falsified a statement, which resulted in his supervised
release being revoked. See, e.g., Avery v. City
of Milwaukee, 847 F.3d 433, 439-40 (7th Cir. 2017).
IT IS ORDERED that plaintiff's motion
for leave to proceed without prepayment of the filing fee
(Docket No. 2) is GRANTED.
IS FURTHER ORDERED that plaintiff must pay the $350
filing fee as he is able. Plaintiff should forward payments
to the clerk of court and clearly identify the payments by
case name and number.
IS FURTHER ORDERED that the United States Marshal
shall serve a copy of the complaint and this order upon
defendant Amie Malchow 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). Although Congress requires
the court to order service by the U.S. Marshals Service, it
has not made any provision for these fees to be waived either
by the court or by the U.S. Marshals Service. 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). The U.S. Marshals will give plaintiff
information on how to remit payment. The court is not
involved in collection of the fee.
IS FURTHER ORDERED that defendant Amie Malchow shall
file a responsive pleading to the complaint.
IS FURTHER ORDERED that the parties may not begin
discovery until after the court enters a scheduling order