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Harris v. Clarke

United States District Court, E.D. Wisconsin

July 25, 2018

RICKEY J. HARRIS, III, Plaintiff,
v.
DAVID CLARKE, Defendant.

          ORDER AND RECOMMENDATION

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.

         Plaintiff Rickey J. Harris, who is representing himself, filed a complaint under 42 U.S.C. § 1983 and a motion for leave to proceed without prepayment of the filing fee under 28 U.S.C. § 1915. The Prison Litigation Reform Act (PLRA) applies to this case because Harris was incarcerated when he filed his complaint. This order resolves Harris's motion and screens his complaint.

         Motion for Leave to Proceed without Prepayment of the Filing Fee

         The PLRA gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that they pay an initial partial filing fee. On May 29, 2018, the court ordered Harris to pay an initial partial filing fee of $16.83. Harris paid that fee on July 9, 2018. Accordingly, the court will grant his motion 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 Complaint

         The court is required 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 or portion thereof if the prisoner has raised 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 cognizable claim under the federal notice pleading system a plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). To state a claim for relief 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 deprivation was visited upon him by a person or persons 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 is obliged to give the plaintiff's 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)).

         The Complaint's Allegations

         Harris alleges that he was an inmate at the Milwaukee County Jail in February 2017. Just prior to being booked into the jail for a non-drug-related offense two John Doe sheriff deputies allegedly instructed Harris to change into jail clothing. Harris asserts that he complied with the order and changed in a holding cell while one of the deputies watched through the cell door window.

         After changing, Harris states that he was handcuffed and escorted by the two deputies to the shower area. One of the deputies allegedly asked him if he had anything illegal on or in his body. Harris replied that he did not, asked why he was being searched, and asked if he could speak to a sergeant. The deputy allegedly told Harris that he could speak to a sergeant after the search.

         According to Harris, one of the deputies put on latex gloves and ordered Harris to lower his pants and underwear to his knees and squat. The deputy then allegedly used a flashlight to spread open Harris's buttocks. Harris was again denied his request to speak to a sergeant.

         Shortly thereafter, Harris spoke with two Milwaukee County detectives/ investigators and explained to them what had happened. According to Harris, one of the detectives told him that it was wrong for the deputies to strip search him without authorization. They allegedly suggested that he file a grievance, which he did that same night. Harris left the ...


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