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 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 (DKT. NO. 2)
Prison Litigation Reform Act (“PLRA”) applies to
this action 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 with his case 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.
February 27, 2019, the court ordered the plaintiff to pay an
initial partial filing fee of $16.50. Dkt. No. 6. The court
received that fee on March 11, 2019. The court will grant the
plaintiff's motion for leave to proceed without
prepayment of the filing fee and will allow 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 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,
Facts Alleged in the Complaint
plaintiff is an inmate at the Milwaukee Secure Detention
Facility. Dkt. No. 1 at 1. Brian Hayes is an
“Administrator” with the Department of Hearing
and Appeals; Vince Varone is an Administrative Law Judge; and
Tracy Johnson is a “P.O. Agent.” Id.
January 4, 2019, Varone revoked the plaintiff's extended
supervision in No. 02-CF-271. Dkt. No. 1 at 3. At that time,
the plaintiff had completed seven years and one day of the
ten-year custodial portion of his sentence. Id. He
had three years and four days left until his mandatory
release date of January 13, 2022. Id. The plaintiff
told Varone and Johnson that “they [could not] take
[his] extended supervision street time credit and put it back
on [his] prison time because it [would] be subjecting [him]
to a life sentence” that the sentencing judge did not
impose. Id. The plaintiff alleges that nevertheless,
Varone took the plaintiff's extended supervision street
time credit and “put it back on [his] confinement
prison time.” Id. at 2. As for defendant
Johnson, the plaintiff alleges only that Johnson violated his
rights by “having Vince Varone” take his street
time credit and add it back to his confinement time.
Id. at 2.
plaintiff appealed Varone's decision to Hayes and Hayes
affirmed the decision. Id. at 3. The plaintiff seeks
monetary damages and asks the court to “put [his] max-
dated back to 1/13/22.” Id. at 4.
Legal Analysis of Alleged Facts The court first
notes that this is the second lawsuit the plaintiff has filed
alleging the same violations. On January 17, 2019, he filed a
complaint against Varone and another defendant, Jessica
Przybylski, alleging that they violated his rights by adding
his “street time credit” back to his custodial
sentence. Mays v. Przybylski, et al., No. 19-cv-103.
This case, which the plaintiff filed a little over three