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King v. Olmsted

United States District Court, E.D. Wisconsin

October 29, 2019

MARVELL KING, Plaintiff,
v.
STEPHANIE OLMSTED, et al., Defendants.

          SCREENING ORDER

          LYNN ADELMAN, UNITED STATES DISTRICT JUDGE

         Plaintiff Marvell King, 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 constitutional rights. This order resolves plaintiff's motion for leave to proceed without prepaying the filing fee and screens his complaint.

         I. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE

         The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff 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 September 12, 2019, I ordered plaintiff to pay an initial partial filing fee of $3.97. Docket No. 6. Plaintiff paid that fee on October 15, 2019. I will grant plaintiff's 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.

         II. SCREENING THE COMPLAINT

         A. Federal Screening Standard

         Under the PLRA, I 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). I 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, I apply 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)). I construe pro se complaints liberally and hold 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)).

         B. Plaintiff's Allegations

         The plaintiff names as defendants Wisconsin Division of Community Corrections (“DCC”) Agent Stephanie Olmsted, who was the plaintiff's probation officer, and Administrative Law Judge (“ALJ”) Jonathan Nitti. Docket No. 1 ¶ A.2.

         The plaintiff alleges that on October 5, 2017, he was arrested after Ashley Schultz (not a defendant) accused him of punching her in her eyes. Id. ¶ B.1-2. Deputy Nick Helstern (not a defendant) responded to a report of a domestic dispute. Id. ¶ B.1. He observed that both of Schultz's eyes were swollen and photographed her injuries. Id. ¶ B.3. Helstern spoke with the plaintiff at his work, and the plaintiff said that he and Schultz “had gotten into a verbal argument, but nothing really more.” Id. Nonetheless, Helstern arrested the plaintiff and took him into custody. Id. The plaintiff was charged with substantial battery and disorderly conduct, both as a repeat offender. Id. ¶ B.4.

         A trial on the plaintiff's charges began January 25, 2018. Id. A photo of Schultz was introduced showing that only one eye was swollen. Id. ¶ B.3. Helstern allegedly gave conflicting information about fixtures on the wall, which were contradicted by photos the plaintiff's attorney submitted into evidence. Id. The plaintiff admitted he pushed Schultz only after she had struck him “several times in the face.” Id. The plaintiff alleges that Schultz and her friend changed their statements several times, differing from earlier statements they had given to police. Id. ΒΆ ...


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