United States District Court, E.D. Wisconsin
KEVON E. HOUSTON, Plaintiff,
SHAWANO COUNTY POLICE DEPARTMENT, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE.
Kevon E. Houston, a pro se inmate at Kettle Moraine
Correctional Institution, filed a complaint under 42 U.S.C.
§ 1983 alleging that Defendant violated his
constitutional rights by taking his DNA without his consent.
This matter is before the court on Plaintiff's motion to
proceed without prepaying the civil case filing fee, (Docket
#2), and for screening of his complaint, (Docket #1). This
case was assigned to U.S. Magistrate Judge William E. Duffin;
however, because not all parties have had the opportunity to
consent to magistrate judge jurisdiction, the case was
randomly referred to a U.S. District Court judge to resolve
Plaintiff's motion and screen his complaint.
MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING
Prison Litigation Reform Act 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 the prisoner pay an initial partial
filing fee. On February 13, 2019, Magistrate Duffin ordered
Plaintiff to pay an initial partial filing fee of $13.49.
(Docket #5). Plaintiff paid the fee on March 12, 2019. As
such, the Court will grant his motion. Plaintiff will be
required to pay the remainder of the filing fee over time in
the manner described at the end of this Order.
SCREENING OF THE COMPLAINT
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109- 10 (7th Cir. 2003)
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, 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the 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 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. 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 is obliged to give a
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)).
Allegations in the Complaint
alleges that, while he was being booked at the Shawano County
Jail (the “Jail”), Officer Keith Sorlie
(“Sorlie”) of the Defendant police department
asked him to sign a permission slip allowing Sorlie to obtain
DNA from Plaintiff's hands and mouth. (Docket #1 at 2).
State Trooper Heinz (“Heinz”) had already signed
the DNA permission slip as a witness. Id. Although
he refused to sign the permission slip, Plaintiff states that
his DNA was taken anyway. Id. at 2-3. He asserts
that this was a violation of his rights and seeks injunctive
relief and compensatory and punitive damages. Id. at