United States District Court, E.D. Wisconsin
AND ORDER DENYING AS MOOT PLAINTIFF'S MOTION FOR
EXTENSION OF TIME TO FILE AMENDED COMPLAINT (DKT. NO. 20),
DENYING AS MOOT PLAINTIFF'S SECOND MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 22),
SCREENING AMENDED COMPLAINT UNDER 28 U.S.C. §1915A,
DENYING WITHOUT PREJUDICE SECOND MOTION TO APPOINT COUNSEL
(DKT. NO. 25), DENYING MOTION TO USE RELEASE ACCOUNT FOR
COPIES (DKT. NO. 25), AND GRANTING MOTION FOR STATUS OF CASE
(DKT. NO. 27)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Shawn Murphy, who is representing himself, is a prisoner at
Waupun Correctional Institution. He filed this lawsuit
against defendants Kamphuis and Muenchow, alleging that they
violated his rights under Title II of the Americans with
Disabilities Act (ADA), 42 U.S.C. §12132. Dkt. No. 1. On
June 20, 2017, the court screened the complaint and allowed
the plaintiff to proceed on claims under the ADA and the
Rehabilitation Act (RA), as well as a claim that he had been
denied access to the courts. Dkt. No. 18 at 8-11. The court
also allowed the plaintiff to file an amended complaint,
based on his assertion that he wanted to sue five additional
defendants. Id. at 10. On September 5, 2017, the
plaintiff filed his amended complaint. Dkt. No. 21.
Motion for an Extension of Time to File Amended Complaint
(Dkt. No. 20)
August 7, 2017 order, the court required the plaintiff to
file his amended complaint in time for the court to receive
it by September 8, 2017. Dkt. No. 18. On August 31, 2017, the
court received a motion from the plaintiff. Dkt. No. 20. He
explained that he had a number of mental health conditions,
and that he was not receiving care for those conditions,
which resulted in a manic episode. Id. at 1. He
asked that, if the court did not receive his amended
complaint by the September 8, 2017 deadline, it understand
that it was because of the lack of proper medical care, and
it allow the plaintiff to proceed on his original complaint.
Id. at 2. On September 5, 2017, however- three days
before the deadline the court had set-the court received the
plaintiff's amended complaint. The court will deny as
moot the plaintiff's motion to extend the time for him to
file the amended complaint. Dkt. No. 20.
Second Prisoner Request to Proceed in District Court Without
Prepaying the Full Filing Fee (Dkt. No. 22)
court received the plaintiff's first request to proceed
without prepaying the filing fee on November 1, 2016. Dkt.
No. 2. The court responded by requiring the plaintiff to pay
an initial partial filing fee of $1.83. Dkt. No. 6. The
plaintiff then filed a supplement to his motion, dkt. no. 8;
a supplemental copy of his inmate trust account, dkt. no. 9;
and a motion asking the court to reconsider its order
requiring him to pay an initial partial filing fee, dkt. no.
10. The court issued an order allowing the plaintiff to pay
the initial partial filing fee out of his release account.
Dkt. No. 11. A little over two weeks later, the court
received the $1.83 initial partial filing fee. Accordingly,
the court granted the plaintiff's motion to proceed
without prepaying the filing fee. Dkt. No. 15.
not clear to the court why the plaintiff has filed another
request to proceed without prepaying the filing fee. Dkt. No.
22. Perhaps what the plaintiff is really asking is for the
court to issue an order telling him that he does not have to
pay the remaining balance of the filing fee, as the court
required in its June 20, 2017 order. Dkt. No. 15 at 15. If
that is what the plaintiff is asking, the court cannot grant
his request. The law requires that a prisoner who is
proceeding without prepaying the filing fee “shall be
required to pay the full amount of the filing fee.” 28
U.S.C. §1915(b)(1). The court cannot excuse the
plaintiff from paying the full filing fee, because the law
does not allow it. The court will deny as moot his request
that the court allow him to proceed without prepaying the
filing fee, because the court already has granted that
Screening of the Plaintiff's Amended Complaint (Dkt. No.
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, or part of it, 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.
state a cognizable claim under the federal notice pleading
system, the plaintiff must provide a “short and plain
statement of the claim showing that [he] is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not
need 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)). A
complaint that offers “labels and conclusions, ”
however, or “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 allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
considering whether a complaint states a claim, courts follow
the two-step process in Twombly. First, they must
“identify pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. A plaintiff
must support legal conclusions with factual allegations.
Id. Second, if there are well-pleaded factual
allegations, courts must “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. §1983, a
plaintiff must allege that the defendants: 1) deprived him of
a right secured by the Constitution or laws of the United
States; and 2) acted 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 is
obliged to give the plaintiff's pro se
allegations, “however inartfully pleaded, ” a
liberal construction. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
The Plaintiff's Allegations
amended complaint, the plaintiff repeats his original
allegations against defendants Kamphuis and Muenchow. He
alleges that he is disabled: he has bipolar type 1, a
learning disorder, post-traumatic stress disorder and
borderline personality. Dkt. No. 21 at 5. Kamphuis allegedly
repeatedly denied the plaintiff's requests for
accommodations under the ADA. Dkt. No. 21 at 3-5. Kamphuis
told the plaintiff that he needed to provide documentation of
his disability, but the plaintiff could not get copies of the
health records that would have proven his disability.
Id. at 4. The plaintiff also ...