United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING AND DISMISSING THE COMPLAINT (DKT. NO. 1)
PAMELA PEPPER, United States District Judge.
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint under 42 U.S.C. §1983,
alleging that the defendants violated his civil rights. Dkt.
No. 1. This order resolves the plaintiff's motion for
leave to proceed without prepayment of the filing fee, dkt.
no. 2, screens his complaint, dkt. no. 1, and dismisses this
THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF
THE FILING FEE
Prison Litigation Reform Act (“PLRA”) applies to
this case because the plaintiff was incarcerated when he
filed his complaint. 28 U.S.C. §1915. The law allows a
court to give an incarcerated plaintiff the ability to
proceed without prepaying the civil case filing fee if he
meets certain conditions. One of those conditions is that the
plaintiff must 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.
January 31, 2019, the court ordered the plaintiff to pay an
initial partial filing fee of $33.00. Dkt. No. 6. The court
received that fee on February 11, 2019. The court will grant
the plaintiff's motion for leave to proceed without
prepayment of the filing fee and will require him to pay the
remainder of the filing fee over time in the manner explained
at the end of this order.
SCREENING OF THE PLAINTIFF'S COMPLAINT
PLRA 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
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C.
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) whoever
deprived him of that right was was acting under color of
state law. Buchanan-Moore v. C'nty 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)).
Facts Alleged in the Complaint
plaintiff's extended supervision was revoked on January
4, 2019; he does not say by whom. Dkt. No. 1 at 2. At that
time, the plaintiff's maximum discharge date was January
13, 2022. Id. at 3. According to the plaintiff,
Jessica Przybylski and Administrative Law Judge Vince Varone
miscalculated his sentence of ten years in custody and ten
years on extended supervision, by taking his “extended
supervision street time credit and put[ting] it back
on” his case, which resulted in the twenty-year
sentence turning into a twenty-seven-year sentence.
Id. at 2-3. The plaintiff wrote to Przybylski and
Varone to correct his maximum discharge date back to January
13, 2022 but they refused to correct the error. Id.
at 3. The plaintiff asserts that by extending his sentence
beyond his maximum discharge date, the defendants violated
his Eighth Amendment right against cruel unusual punishment
and his rights under the Fourteenth Amendment. Id.
For relief, the plaintiff seeks monetary damages and asks the
court to “put [his] max-discharge dated back to January
13, 2022.” Id. at 4.
a prisoner beyond the termination of his sentence without
penological justification can violate the Eighth Amendment if
it is the product of deliberate indifference. Campbell v.
Peters, 256 F.3d 695, 700 (7th Cir. 2001) (citing
Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993));
see also Werner v. Wall, 836 F.3d 751, 760 (7th Cir.
2016) (“[W]hen confronted with the failure to release a
person because of an error in the computation of his
sentence, we have relied on the principles of the Eighth
Amendment.”). To state an Eighth Amendment violation of
this kind, the plaintiff must allege that a prison official
knew that the plaintiff was being held beyond the termination
of the sentence, that the official failed to act (or took
action that was ineffectual under the circumstances), and the
official's conduct caused the unjustified detention.
Moore, 986 F.2d at 686. “An error of state
law” does not, on its own, implicate a constitutional
violation. Campbell, 256 F.3d at 700; see also
Jones v. Skalski, No. 10-CV-766-BBC, 2012 WL 12965697,
at *3 (W.D. Wis. Jan. 31, 2012), aff'd, 494
Fed.Appx. 667 (7th Cir. 2012) (“plaintiff cannot
prevail unless he shows that defendants detained him in
violation of state law and the violation was
intentional or obvious.”).
plaintiff states that Przybylski and Varone miscalculated his
maximum release date by improperly adding seven years and
twelve days back on to his sentence. The plaintiff, however,
has not yet been held past the termination of his
sentence (which, according to him, will occur on January 13,
2022). The plaintiff does not have a constitutional right to
be released prior to his maximum release date. See
Kendrick v. Hamblin, 606 Fed.Appx. 835, 838 (7th Cir.
2015) (“[B]ecause [the plaintiff] was not entitled to
release after serving two-thirds of his sentence, he fails to
state a claim that, in violation of the ...