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Eubanks v. Foster

United States District Court, E.D. Wisconsin

June 27, 2018

SHAWN EUBANKS, Plaintiff,
v.
BRIAN FOSTER, CO J. DORN, GWENDOLYN VICK, CO POHL, AND CAPT. THEANDER [1] , Defendants.

          SCREENING ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Shawn Eubanks, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that the defendants violated his civil rights. This matter is before me on Eubanks' motion for leave to proceed without prepayment of the filing fee and for screening of his complaint.

         MOTION ON FILING FEE

         The Prison Litigation Reform Act applies to this case because Eubanks 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 Eubanks pay an initial partial filing fee. 28 U.S.C. § 1915(b). Once Eubanks pays the initial partial filing fee, the Court may allow him to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         On April 30, 2018, I ordered Eubanks to pay an initial partial filing fee of $10.75. Eubanks paid that fee on May 7, 2018. Therefore, I will grant his motion for leave to proceed without prepayment of the filing fee. Eubanks must pay the remainder of the filing fee over time in the manner explained at the end of this order.

         SCREENING THE COMPLAINT

         1. 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 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. 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). 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)).

         2. Eubanks' Allegations

         Eubanks is incarcerated at the Waupun Correctional Institution He alleges that on April 22, 2018, defendant Officer Dorn closed Eubanks' hand in the “trap” (presumably, the trap door of his cell through which officers can pass things to inmates), causing pain and blood. Eubanks states that it is unclear why Dorn closed his hand in the trap.

         On April 23, 2018, Dorn allegedly told Eubanks that Eubanks had no other choice but to allow Dorn to take him to see the nurse, or he would not see the nurse at all. Eubanks allowed Dorn to take him to the nurse. On the way back, Officer Dorn said, “how do that hand feel just be lucky I didn't break it [sic].” (ECF No. 1 at 2.)

         Eubanks alleges that on April 23, 2018, he wrote a letter to defendant Warden Brian Foster stating that Officer Dorn had assaulted him the previous day. Warden Foster allegedly allowed ...


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