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Mays v. Thoreson

United States District Court, E.D. Wisconsin

July 18, 2019

NEIL THORESON, et al., Defendants.



         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. This decision resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1.


         The 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 PLRA allows 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 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 November 26, 2018, the court ordered the plaintiff to pay an initial partial filing fee of $40.00. Dkt. No. 6. The court received the fee on December 17, 2018. The court will grant the plaintiff's motion for leave to proceed without prepaying 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.


         The PLRA requires federal courts 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 may dismiss a case, or part of a case, 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. §1915(e)(2)(B).

         To state a claim, the 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).

         The facts alleged in the complaint must allow the court to “draw the reasonable inference that the 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.

         Federal courts follow the two-step analysis in Twombly to determine whether a complaint states a claim. Id. at 679. First, the court determines whether the 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. The court gives the allegations of people who are representing themselves, “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

         When he filed his complaint, the plaintiff was an inmate at the Milwaukee Secure Detention Facility.[1] Dkt. No. 1. He has sued Wisconsin Department of Corrections employees: Defendant Tracy Johnson is the plaintiff's “p.o. agent;” defendants Neil Thoreson, Saus Dewitt, and Chad Frey are Johnson's supervisors. Id.

         The plaintiff's complaint is repetitive, but the court has tried to pare it down to its basic facts. It appears that on June 11, 2018, the plaintiff had a hearing at the Milwaukee County Jail to revoke his extended supervision; on June 20, 2018, he won that hearing (his ES was not revoked).[2] Id. at 2-3. The plaintiff says that on July 27, 2018, defendant Johnson-his probation agent- appealed, but that she lost the appeal on June 27, 2018. Id. The complaint alleges that from that point, Johnson began harassing the plaintiff and trying to intimidate him by trying to get the case reopened. Id. The plaintiff says that on July 30, 2018, he wrote to defendant Thoreson-Johnson's supervisor- complaining about the harassment. Id. at 3. He says that Thoreson responded on August 13, 2018, telling the plaintiff that if he was released from Milwaukee County Jail, Johnson no longer would be his supervising agent. Id. at 3-4. The plaintiff asserts that on August 29, 2018, Johnson continued to harass him by keeping him locked up for supervision violations that he'd “already beat.” Id. at 3.

         On September 20, 2018, the plaintiff “bailed out” of the county jail.[3]Id. at 4. It appears that at that point, he had a new probation agent, a “Mr. Brain.” Id. The plaintiff says that on October 8, 2018, he was at his home “fighting [his] criminal case” when Johnson had him re-arrested for the allegations upon which he'd already prevailed back in June. Id. at 2, 4. The complaint alleged that Johnson “had her supervisor Chad J. Frey come to [the plaintiff's] family home with 21 police officers and [take] him into custody for no reason.” Id. at 4. The plaintiff asserted, and the docket confirms, that he was out on bail for his criminal case. The defendant said had been out for only nineteen days and had not committed any new violations; he asserted that as of the date ...

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