United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
plaintiff, who was incarcerated at the Milwaukee County House
of Corrections at the time of filing, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. This matter comes before the
court on the plaintiff's motion for leave to proceed
without prepaying the full filing fee and to screen the
to Proceed without Prepayment of the Filing Fee
the plaintiff is no longer incarcerated, he remains subject
to the requirements of the Prison Litigation Reform Act
(PLRA) because he was incarcerated at the time he filed his
complaint. The PLRA gives courts discretion to allow
plaintiffs to proceed with their lawsuits without prepaying
the $350 filing fee, as long as they comply with certain
requirements. 28 U.S.C. § 1915. One of those
requirements is that the plaintiff pay an initial partial
filing fee. The plaintiff has been assessed an initial
partial filing fee of $72.00. On October 2, 2019, the
plaintiff filed a motion for an extension of time to pay the
initial partial filing fee, and subsequently paid the initial
partial filing fee of $72.00 on October 15, 2019. The court
therefore denies the plaintiff's motion for an extension
of time as moot and grants the motion to proceed without
prepayment of the filing fee. The plaintiff is still required
to pay the remainder of the fee over time as he is able.
of the Complaint
court is required 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 portion thereof 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. §
1915A(b). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to 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 must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).
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evening of June 29, 2019, Brown alleges he was sitting in a
park near a wooded area when deputies from the Milwaukee
County Sheriff's Department appeared nearby. Brown
recognized one of the Defendants, Deputy Jane Doe, from his
time in jail and began talking with her.
deputies then left Brown and went into the wooded area. Brown
left where he was sitting to walk along a path in the woods.
While Brown was walking in the woods, Deputy Jane Doe started
to talk to him again. Brown started recording the events at
this point. Next, Defendant Nathan Spittlemaster approached
Brown and ordered him to leave the wooded area. Brown then
told the deputies that he was a citizen and could stand where
he wanted. The deputies then arrested Brown on charges of
public intoxication and resisting arrest. Brown believes this
arrest led to additional unfortunate events resulting in his
probation revocation. He also alleges that the criminal
complaint filed against him was misleading.
initial matter, the Milwaukee County Sheriff's Department
is not a suable entity under 42 U.S.C. § 1983. See
Omegbu v. Milwaukee Cty., 326 Fed.Appx. 940, 942 (7th
Cir. 2009); see also Buchanan v. City of Kenosha, 57
F.Supp.2d 675, 679 (E.D. Wis. 1999). The office of the
Milwaukee County Sheriff is part of the government of
Milwaukee County. See Johnson v. Milwaukee Cty.
Sheriff, No. 17-CV-1574, 2018 WL 5473050, at *2 (E.D.
Wis. Oct. 29, 2018). Therefore, it is “not a legal
entity separable from the county government which it serves
and is therefore, not subject to suit.” Whiting v.
Marathon Cty. Sheriff's Dep't, 382 F.3d 700, 704
(7th Cir. 2004); see also Omegbu, 326 Fed.Appx. at
has provided no arguable basis for relief, having failed to
make any rational argument in law or fact to support his
claims. See House v. Belford, 956 F.2d 711, 720 (7th
Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d
304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.
Williams, 490 U.S. 319 (1989)). Brown presents only
conclusory allegations to the court. He does not dispute that
he was publicly intoxicated or that he resisted arrest. Brown
asserts that the “illegal action directly lead [sic] to
further unfortunate events” that resulted in his
probation revocation, but does not specify what the
additional events were. Dkt. No. 1 at 4. Brown also claims
that Defendants filed a “misleading” criminal
complaint against him, but does not describe how it was
misleading. Id. If Defendants violated his
constitutional rights or performed an illegal search, Brown
must provide facts supporting such claims. Merely asserting
that Defendants violated his freedom of speech and right to
peacefully assemble while he was recording their actions is
not sufficient for the court to infer that constitutional
violations occurred. Therefore, Brown has failed to state a
claim against any of the named Defendants. The court will
nevertheless provide Brown with an opportunity to file an
amended complaint to cure the deficiencies identified herein.
plaintiff wants to proceed, he must file an amended complaint
curing the deficiencies in the original complaint as
described herein. Such amended complaint must be filed on or
before November 18, 2019. Failure to file an