United States District Court, E.D. Wisconsin
ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
AND SCREENING AND DISMISSING THE COMPLAINT (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
plaintiff, who is in custody at the Waukesha County Jail,
filed a complaint 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
screens and dismisses his complaint, dkt. no. 1.
THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (Dkt. No. 2)
Prison Litigation Reform Act (“PLRA”) applies to
this case, because the plaintiff was in custody when he filed
the complaint. 28 U.S.C. §1915. The PLRA allows an
incarcerated plaintiff to proceed with a lawsuit in federal
court without pre-paying the full civil case filing fee so
long as he pays an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial
filing fee, the plaintiff can pay the balance of the $350
filing fee over time, through deductions from his prisoner
court ordered the plaintiff to pay an initial partial filing
fee of $32.65. Dkt. No. 4. The court received that fee on
April 27, 2018. The court will grant the plaintiff's
motion for leave to proceed without prepayment of the filing
fee. He must pay the remainder of the filing fee over time in
the manner explained at the end of this order.
SCREENING OF THE PLAINTIFF'S COMPLAINT (DKT. NO.
Standard for Screening Complaints
PLRA requires federal courts 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 may dismiss a case, or part of it,
if the claims alleged are “frivolous or malicious,
” fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is
immune from that relief. 28 U.S.C. §1915(e)(2)(B).
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “fair notice of what the .
. . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“Labels and conclusions” or a “formulaic
recitation of the elements of a cause of action” will
not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555).
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Id. at 679. First, the court determines
whether the plaintiff's legal conclusions are supported
by factual allegations. Id. Legal conclusions
unsupported by facts “are not entitled to the
assumption of truth.” Id. Second, the court
determines whether the well-pleaded factual allegations
“plausibly give rise to an entitlement to
relief.” Id. The court gives pro se
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)).
Facts Alleged in the Complaint
December 8, 2017, the plaintiff and his
“companions” were involved in a traffic stop
which resulted in a car accident; they were taken into
custody by Pewaukee Police Department Officers Nicholas Welch
and Kerry Corrus, who took them to Waukesha Memorial Hospital
to be treated for minor cuts and bruises. Dkt. No. 1 at 2.
hospital, Welch ordered the plaintiff to undress down to
underwear and gave him a hospital gown, which the plaintiff
put on while in the emergency room. Id. Nurse Jane
Doe showed up, and checked the plaintiff's vital signs,
listening with her stethoscope. Id. at 2-3.
“[W]ithout warning or permission, Jane Doe slid her
right hand under [the plaintiff's] hospital gown and
quickly inside [his] underwear, then touched [his] penis and
[his] scrotum with her hand.” Id. at 3. The
plaintiff says that he felt violated, and responded by
saying, “Hey, what are you doing putting your hand in
my underwear?!” Id. He says that ...