United States District Court, E.D. Wisconsin
GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING AS MOOT
PLAINTIFF'S MOTION TO AMEND RELIEF (DKT. NO. 7),
SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1) AND
DISMISSING CASE FOR FAILURE TO STATE A CLAIM
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff is a state prisoner who is representing himself. He
filed a complaint (one of seven he has filed in the past
year) under 42 U.S.C. §1983, alleging that the
defendants violated his civil rights. Dkt. No. 1. This
decision resolves the plaintiff's motion for leave to
proceed without prepayment of the filing fee, dkt. no. 2, and
his motion to amend relief, dkt. no. 7. It also screens his
complaint, dkt. no. 1.
Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 2)
Prison Litigation Reform Act applies to this case because the
plaintiff was in custody 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
lawsuit without prepaying the civil case filing fee, if he
meets certain conditions. One of those conditions is that the
plaintiff pay an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial
filing fee, the court may allow the plaintiff to pay the
balance of the $350 filing fee over time, through deductions
from his prisoner account. Id.
court waived the initial partial filing fee. Dkt. No. 4. The
court will grant the plaintiff's motion for leave to
proceed without prepayment of the filing fee, and will allow
him to pay the $350 filing fee over time in the manner
explained at the end of this order.
Screening the Plaintiff's Complaint
Federal Screening Standard
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 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) someone deprive him of a right secured by the
Constitution or laws of the United States; and 2) that person
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)).
The Plaintiff's Allegations
plaintiff's complaint consists of two documents: the
court's form complaint, in which the plaintiff lists the
defendants and includes his request for relief, dkt. no. 1,
and a fifty-three-page document that contains the
plaintiff's allegations, dkt. no. 1-1. He also filed 124
pages of attachments to the complaint. Dkt. No. 1-2. The
fifty-three-page filing consists of a heading that reads,
“State of Wisconsin Circuit Court Outagamie County,
” a caption for two state criminal cases (State of
Wisconsin v. Dennis Strong, No. 17-CM-282 and No.
11-CF-05), a state civil case and appeal (Strong v.
Gehring, et al., No. 17-CV-615 and Appeal No.
17-AP-1919), and a title that reads, “Affidavit -
Statement of Fact in Support of Legal Malpractice Cause of
Action - Civil Right Action for Deprivations of
Rights.” Dkt. No. 1-1 at 1.
plaintiff alleges that the same conduct led to probation
revocation proceedings in Case 11-CF-05 and criminal charges
in Case 17-CM-282. Dkt. No. 1-1 at 2-3. According to the
affidavit attached to the complaint, an individual named
“Willard” was the complaining witness in Case
17-CM-282. Id. In May 2017, the plaintiff told
defendant Attorney Eric Eickhoff, his public defender in Case
11-CF-05 (and briefly for Case 17-CM-282), “of a party
who alerted Strong of material evidence to include but not
limited to potential exculpatory value and impeachment
coupled with a showing of bias against Strong and to have had
direct and indirect contact with Willard[.]”
Id. at 2-3, 38-39. Defendant Eickhoff assured the
plaintiff that he would follow up with the party, but
Eickhoff later told the plaintiff that a private investigator
should do it. Id. at ...