Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ferguson v. Kenosha Police Department

United States District Court, E.D. Wisconsin

March 6, 2019

JOSEPH SAMUEL FERGUSON, Plaintiff,
v.
KENOSHA POLICE DEPARTMENT, and RYAN MCDONOUGH, Defendants.

          SCREENING ORDER

          William C. Griesbach, Chief Judge United States District Court

         Pro se plaintiff Joseph Ferguson filed a civil rights complaint under 42 U.S.C. §1983, along with a motion for leave to proceed without prepayment of the filing fee under 28 U.S.C. §1915(a)(1). ECF Nos. 1-2. This case was originally assigned to U.S. Magistrate Judge David E. Jones. Not all parties have had the opportunity to consent to magistrate judge jurisdiction; therefore, the case was randomly reassigned to this court for screening of the complaint.

         Motion For Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (“PLRA”) applies to this case because plaintiff was incarcerated when he filed his complaint. The PLRA allows an incarcerated plaintiff to proceed with a lawsuit in federal court without prepaying the $350 filing fee, as long as he complies with certain requirements. 28 U.S.C. §1915. One of those requirements is payment of an initial partial filing fee.

         On January 22, 2019, Judge Jones waived the initial partial filing fee because plaintiff neither had the assets nor the means to pay. ECF No. 7. Judge Jones instructed plaintiff to notify the court, on or before February 12, 2019, if he wished to voluntarily dismiss this action to avoid the possibility of incurring a strike under §1915(g). Id. Plaintiff did not voluntarily dismiss this case. Therefore, the court will grant plaintiff's motion to proceed without prepayment of the filing fee and will screen the complaint.

         Screening of the Complaint

         The PLRA requires federal courts to screen complaints brought by an incarcerated plaintiff who seeks relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court can dismiss an action or portion thereof 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 such relief. 28 U.S.C. § 1915(e)(2)(B).

         To state a claim under the federal notice pleading system, 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).

         The factual content of the complaint must allow the court to “draw the reasonable inference that 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.

         Federal 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 plaintiff's legal conclusions are supported by factual allegations. Id. Legal conclusions not supported 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. Courts give 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)).

         Allegations of the Complaint

          Plaintiff alleges that, on July 9, 2018, McDonough used excessive force during an arrest. ECF No. 1 at 2. Plaintiff states that he “never resisted arrest, ” yet McDonough tazed him so severely that he had to “have the prongs cut out of [his] skin.” Id. Plaintiff notes that he was not charged with resisting an officer. Id. For relief, plaintiff seeks monetary damages. Id. at 3.

         The Court's Analysis

         To 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of North Fond ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.