Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Henderson v. Schwochert

United States District Court, E.D. Wisconsin

October 9, 2019

TITUS HENDERSON, Plaintiff,
v.
JIM SCHWOCHERT, et al., Defendants.

          SCREENING ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         Plaintiff Titus Henderson, an inmate confined at the Green Bay Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983 alleging that the defendants violated his civil rights. This order resolves Henderson's motion for leave to proceed without prepaying the filing fee and his motion to waive the initial partial filing fee and screens his complaint.

         The court has jurisdiction to resolve Henderson's motion to proceed without prepaying the filing fee and to screen the complaint in light of Henderson's consent to the full jurisdiction of a magistrate judge and the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court.

         1. Motion for Leave to Proceed without Prepaying the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because Henderson was a prisoner when he filed his complaint. See 28 U.S.C. § 1915(h). The PLRA allows the court to give a prisoner plaintiff the ability to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. § 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         On July 9, 2019, the court ordered Henderson to pay an initial partial filing fee of $0.22. (ECF No. 8.) On August 2, 2019, Henderson moved to waive that fee. (ECF No. 9.) Henderson asserts that he is not allowed to use a legal loan to pay his filing fees, and therefore “no funds exist to pay” the $0.22 initial partial filing fee. (Id.)

         This court has the authority to waive a plaintiff's initial partial filing fee under 28 U.S.C. § 1915(b)(4) if he lacks both the “assets” and the “means” to pay it. The Seventh Circuit has explained that “[i]t is not enough that the prisoner lack assets on the date he files.” Newlin v. Helman, 123 F.3d 429, 435 (7th Cir. 1997), overruled in part on other grounds by Walker v. O'Brien, 216 F.3d 626, 628-29 (7th Cir. 2000), and Lee v. Clinton, 209 F.3d 1025, 1027 (7th Cir. 2000). If that were the case, prisoners could easily avoid paying the initial partial filing fee by spending what is in his trust account before filing his lawsuit. Therefore, a prisoner's “means” is construed broadly. A prisoner may lack “assets” but still have “means” to pay the fee.

         According to his trust account statement, Henderson received small deposits to his account in January and February 2019. But all of those deposits were immediately withdrawn to pay filing fees in thirteen other federal lawsuits and one state lawsuit brought by Henderson. From March 2019 through June 2019, shortly before he filed his trust account statement, Henderson was apparently in disciplinary segregation and received no deposits. His ending balance was zero.

         Given that Henderson has neither the assets nor the means to pay the initial partial filing fee, the court will not require him to pay one. The court will therefore grant Henderson's motion to waive the initial partial filing fee and his motion for leave to proceed without prepaying the filing fee. He must pay the remainder of the filing fee over time in the manner explained at the end of this order.

         2. Screening the Complaint

         2.1 Federal Screening Standard

         Under the PLRA, the court must screen complaints brought by prisoners seeking relief from 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 prisoner 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).

         In determining whether the complaint states a claim, the court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief 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 for relief under 42 U.S.C. § 1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes pro se complaints liberally and it holds them to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).

         2.2 Henderson's Allegations

         Henderson lists as defendants Wisconsin Department of Corrections (“WDOC”) Division of Adult Institutions Administrator Jim Schwochert, WDOC Secretary Cathy Jess, and former WDOC Secretary Edward Wall.

         He also lists Wisconsin Secure Program Facility (“WSPF”) Warden Gary Boughton and WSPF employees Tim Haines, Lieutenant Tom, Lieutenant Brudos, David Gardner, Lebeus Brown, Thomas Brown, Sergeant Godfrey, Correctional Officer Nelson, Sergeant Hennerman, and Lieutenant Hanfield.

         Henderson sues the defendants in their individual and official capacities. (ECF No. 1 at 2.) He asserts claims under 42 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.