United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
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.
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.
Motion for Leave to Proceed without Prepaying the Filing
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.
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.
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.
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.
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.
Screening the Complaint
Federal Screening Standard
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. §
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).
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)).
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.
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.
sues the defendants in their individual and official
capacities. (ECF No. 1 at 2.) He asserts claims under 42