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Smith v. Clarke

United States District Court, E.D. Wisconsin

June 13, 2018

ANTONIO MARQUES SMITH, Plaintiff,
v.
DAVID CLARKE, LT. TURNER, D. SMITH, DEPUTY SOLCUM, DEPUTY CARR, AND DEPUTY ZETTING, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 5) AND SCREENING COMPLAINT UNDER 28 U.S.C. §1915A

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to proceed without prepayment of the filing fee, dkt. no. 5. This order resolves the motion and screens the complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the 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).

         On May 15, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $17.17. Dkt. No. 4. The plaintiff paid that fee on June 5, 2017. Accordingly, the court will grant the plaintiff's motion. The court will require the plaintiff to pay the remainder of the filing fee over time as set forth at the end of this decision.

         II. Screening the Plaintiff's Complaint

         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 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).

         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)).

         A. The Plaintiff's Allegations

         The plaintiff was confined at the Milwaukee County Jail at all times relevant to his complaint allegations. Dkt. No. 1 at 1. He has sued former Milwaukee County Sheriff David Clarke, Lieutenant Turner and Deputies D. Smith, Solcum, Carr and Zetting. Id.

         The plaintiff alleges that on January 18, 2016, Lieutenant Turner and several deputies came to his jail cell to search it. Id. at 3-4. He says he initially refused to allow them to search the cell, but then complied. Id. at 4. The plaintiff says that he “was placed in handcuffs and then a bull strap, and that he was restrained to the door; he says that Deputy Zetting and several other deputies were present when he was taken from the cell. Id. at 4. The plaintiff indicates that Zetting took hold of his arm, while Deputy Seel (who is not a defendant) conducted a pat-search of the plaintiff; Deputy Seel alleged that he felt a foreign object concealed in the plaintiff's genital area. Id. The plaintiff denied that there were any foreign objects inside of his underwear. Id.

         Lieutenant Turner radioed for additional deputies to respond to the area, and defendants Solcum, D. Smith and Carr responded to the pod. Id. When they arrived, Deputy Solcum took the plaintiff's right arm, Deputy D. Smith stood behind the plaintiff, and Deputy Zetting still had him by the left arm. Id. Deputy D. Smith performed another pat search of the plaintiff and during the search he grabbed the plaintiff's testicles very roughly, squeezing them hard. Id. The plaintiff told Smith that “he could not be squeezing” the plaintiff's testicles and that it hurt. Id. at 5.

         Deputy Smith told Lieutenant Turner that Smith couldn't feel anything, and speculated that he thought the plaintiff was holding the foreign object in his hands. Id. Deputy Solcum grabbed the plaintiff's fingers and roughly bent them backward, causing the plaintiff to yell out in pain. Id. He asked Solcum not to bend his fingers back so far, stating that it felt like Solcum was breaking his fingers. Id. Solcom told Smith, “go again, I have his fingers pulled back.” Id. Smith conducted another pat search, roughly grabbing and squeezing the plaintiff's testicles and causing the plaintiff to flinch. Id. Again, the plaintiff yelled at Smith to release him, which caused Smith to yank harder before releasing the plaintiff. Id. Smith then stood up and smashed the plaintiff's face into the window, holding it there, saying, “I still couldn't feel it, but he has ...


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