United States District Court, E.D. Wisconsin
GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYING FILING FEE (DKT. NO. 2), DENYING PLAINTIFF'S
MOTIONS TO APPOINT COUNSEL (DKT. NOS. 4, 8), GRANTING
PLAINTIFF'S MOTION TO STRIKE AMENDED COMPLAINT (DKT. NO.
13), SCREENING CASE
Pamela Pepper United States District Judge.
plaintiff, an inmate who is representing himself, filed a
complaint under 42 U.S.C. §1983, alleging that the
defendants violated his civil rights. Dkt. No. 1. That
complaint consisted of nine typewritten pages. The court
received an amended complaint on June 26, 2019, consisting of
six handwritten pages accompanied by several attachments.
Dkt. Nos. 10, 10-1. This order resolves the plaintiff's
motion for leave to proceed without prepayment of the filing
fee, dkt. no. 2, grants his motion to strike the amended
complaint, dkt. no. 13, and screens the original complaint,
dkt. no. 1. It also denies the plaintiff's motions to
appoint counsel. Dkt. Nos. 4, 8.
Motion for Leave to Proceed without Prepaying Filing Fee
(Dkt. No. 2)
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915. That law allows a court to give an
incarcerated plaintiff the ability to proceed with his
lawsuit 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.
December 18, 2018, the court ordered the plaintiff to pay an
initial partial filing fee of $0.71. Dkt. No. 7. The court
received that fee on January 2, 2019. The court will grant
the plaintiff's motion for leave to proceed without
prepayment of the filing fee. He must pay the remainder of
the filing fee over time in the manner explained at the end
of this order.
Motion to Strike and Remove Amended Complaint (Dkt. No.
court received the plaintiff's complaint on December 14,
2018. Dkt. No. 1. Four months later, on April 16, 2019, the
court received a six-page, handwritten document that was
captioned as an amended complaint. Dkt. No. 10. Rule 15 of
the Federal Rules of Civil Procedure allow a plaintiff to
amend his complaint one time without court permission, as
long as he does so within twenty-one days after he serves the
complaint (or, if the defendant has answered, within
twenty-one days after service of the answer). The
plaintiff's complaint hasn't yet been served on the
defendant, so he didn't have to ask the court's
permission to amend his complaint.
when a plaintiff files an amended complaint, it
“supersedes, ” or takes the place of, the
original complaint. Duda v. Bd. of Educ. of Franklin
Park Public School Dist. No. 84, 133 F.3d 1054, 1057
(7th Cir. 1998). Because of the court's heavy case load,
however, it was not able to screen the plaintiff's
complaint until now. And after the court received the amended
complaint, the plaintiff filed a motion asking the court to
strike it. Dkt. No. 13. As far as the court can tell, the
plaintiff says that other people advised him that if he
didn't file an amended complaint with attachments,
certain information would not ever come to light. He since
has learned that the information would come out in discovery,
but that it would not be appropriate to bring it out before
the court had screened his complaint. Id. at 1-2. He
asks the court to strike the amended complaint and the
exhibits to it. Id. at 2. The court will grant that
motion. It has reviewed only the original complaint.
Screening the Original Complaint (Dkt. No. 1)
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). For this reason,
district courts “screen” complaints filed by
self-represented plaintiffs to determine whether the
complaints state claims for which a federal court can grant
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) that the
person who 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)).