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Conrad v. Prochaska

United States District Court, E.D. Wisconsin

July 17, 2018

ANTHONY RICHARD CONRAD, Plaintiff,
v.
TODD PROCHASKA, Defendant.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1), AND DENYING PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 8)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff is an inmate who is representing himself. He 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. 2. On October 25, 2017, the plaintiff also filed a motion to appoint counsel. Dkt. No. 8. This order resolves the plaintiff's motions and screens his 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 June 30, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $54.34, dkt. no. 6, and the court received the fee on July 13, 2017. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee. 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 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. 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 alleges that on January 8, 2017, defendant Todd Prochaska responded to a call at the McDonald's located on Monroe Road in the Village of Bellevue in Brown County, Wisconsin. Dkt. No. 1 at 2. The plaintiff states that Prochaska tasered him, struck him twice with an expandable baton, then slammed him to the ground, “causing visible injury to the right side of the plaintiff's head.” Id. According to the plaintiff, Prochaska claimed that his actions were “the result of the plaintiff being unresponsive upon his arrival and then taking a defensive posture.” Id.

         The plaintiff seeks monetary damages for Prochaska's use of unnecessary and excessive force. Id. at 4.

         B. Analysis

         The plaintiff's claim sounds like a claim that the defendant used excessive force against him. When an excessive force claim “arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures' of the person.” Graham v. Connor, 490 U.S. 386, 394 (1989). See also, Alicea v. Thomas, 815 F.3d 283, 288 (7th Cir. 2016) (citing Graham, 490 U.S. at 394) (“This type of §1983 excessive force claim originates from the Fourth Amendment's protection against unreasonable seizures.”). “An officer's use of force is analyzed under the Fourth Amendment's objective ...


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