United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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
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.
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.
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).
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,
The Plaintiff's Allegations
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.
plaintiff seeks monetary damages for Prochaska's use of
unnecessary and excessive force. Id. at 4.
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