United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
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
For Leave to Proceed without Prepayment of the Filing
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.
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
of the Complaint
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.
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).
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.
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)).
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.
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