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Mays v. Hayes

United States District Court, E.D. Wisconsin

April 30, 2019

ANTONIO DARNELL MAYS, Plaintiff,
v.
BRIAN HAYES, et al., Defendants.

          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)

          HON. PAMELA PEPPER, United States District Judge.

         The 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 case.

         I. THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2)

         The 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.

         On 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.

         II. SCREENING OF THE PLAINTIFF'S COMPLAINT

         The 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. §1915A(b).

         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 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).

         To 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, 106 (1976)).

         A. Facts Alleged in the Complaint

         The 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.

         On 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.

         The 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.

         B. 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 ...


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