United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Motion for Leave to Proceed without Prepayment of the Filing
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.
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.
Screening the Plaintiff's Complaint
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).
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 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
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.
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.
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