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) AND SCREENING HIS COMPLAINT
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
case is assigned to U.S. Magistrate Judge William Duffin.
Although the plaintiff consented to Judge Duffin hearing and
deciding the case, the defendants have not yet had the
opportunity to decide whether to consent because, until now,
the court has not screened the complaint and decided whether
it should be served on the defendants. Because both
parties have not consented to the magistrate judge hearing
the case, the clerk's office has referred the case to
this district court to screen the complaint and decide
whether it should be served on any of the defendants. The
court will explain what claims the plaintiff has stated
against which defendants, and then it will return the case to
Judge Duffin for further proceedings.
Motion for Leave to Proceed without Prepayment of 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.
March 13, 2018, Judge Duffin ordered the plaintiff to pay an
initial partial filing fee of $60.08. Dkt. No. 10. The court
received that fee on March 30, 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 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 the court can
grant relief, or that seek monetary relief from a defendant
who is immune from that 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 deprived 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 alleges that on December 20, 2017, an unknown
Kenosha County Sheriff's Deputy fondled the
plaintiff's chest and pinched his nipple in an
inappropriate fashion while the plaintiff was in the van to
be transported to his revocation hearing. Dkt. No. 1 at 2.
The plaintiff asserts that the deputy's co-worker said to
the deputy, “[T]here will not be any chest or any rude
touching, today.” Id. at 3. According to the
plaintiff, the deputy “did the inappropriate sexual
touching for his sexual pleasure.” Id. at 3.
The Court's Analysis
plaintiff sued two defendants-Kenosha County Sheriff David
Beth, and the unknown ...