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),
SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1) AND
Pamela Pepper United States District Judge.
Tucker, a prisoner at Green Bay Correctional Institution who
is representing himself, filed a complaint under 42 U.S.C.
§1983, alleging that the defendants denied him access to
the courts. Dkt. No. 1. The plaintiff also filed a motion for
leave to proceed without prepaying the filing fee. Dkt. No.
Motion to Proceed without Prepaying the Filing Fee
Prison Litigation Reform Act (PLRA) gives courts discretion
to allow prisoners to proceed with their lawsuits without
prepaying the $350 filing fee if they comply with certain
requirements. 28 U.S.C. §1915. One of those requirements
is that the prisoner pay an initial partial filing fee.
February 22, 2019, the court ordered the plaintiff to pay an
initial partial filing fee of $25.83. Dkt. No. 5. The court
received the fee on March 13, 2019. The court will grant the
plaintiff's motion for leave to proceed without
prepayment of the filing fee, and will allow the plaintiff to
pay the remainder of the filing fee over time in the manner
explained at the end of this order.
Screening the Complaint
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, or part of it, 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.
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 the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). The
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
considering whether a complaint states a claim, district
courts follow the principles in Twombly. First,
courts “identify pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. Second, if there are well-pleaded factual
allegations, the court must “assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Id.
state a claim for relief 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)).
The Facts in the Complaint
plaintiff alleges that on August 23, 2018, he filed an inmate
complaint asserting that he was being denied access to the
courts. Dkt. No. 1. at 3. He explains that on August 24,
2018, defendant J. Perttu dismissed the complaint, indicating
that (a) library times were scheduled on a rotating basis,
(b) library time was considered a leisure activity under the
administrative code and (c) the plaintiff should follow the
procedure for obtaining a deadline pass. Id. The
plaintiff says that defendant S. Eckstein (then the warden at
Green Bay Correctional Institution) “upheld” the
dismissal “under the false assertion that the complaint
was about inadequate library time.” Id. The
plaintiff asserts that he filed an appeal with the prison
complaint examiner, defendant B. Hompe, but that Hompe
dismissed the appeal “under the same false
assertion.” Id. Defendant C. O'Donnell
from the office of the Secretary of the Department of
corrections “upheld” the dismissal of the appeal.
Id. at 3-4.
plaintiff asserts that since then, he has sent interview
requests to the person who was prison librarian at the time,
asking “to be granted a legal deadline so that [he]
could complete the research and writing of [his] state habeas
corpus.” Id. at 4. The plaintiff alleges that
he has not received a response to his requests or any passes
to go to the library, “other than the passes [he]
receive[s] once a week every Monday.” Id. The
plaintiff contents that he is being “denied access to
the library to research [his] issues, ” and thus that
he is being “denied [his] right to access the
courts.” Id. He argues that he can't have
meaningful access to the courts if he's allowed to go to