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Bennett v. Clark

United States District Court, E.D. Wisconsin

November 19, 2019

MALCOLM BENNETT, Plaintiff,
v.
DAVID CLARK, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING THE COMPLAINT (DKT. NO. 1) AND DISMISSING THE CASE

          HON. PAMELA PEPPER, CHIEF UNITED STATES DISTRICT JUDGE

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. This order resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1.

         I. THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE

         The Prison Litigation Reform Act (“PLRA”) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The law allows a court to let an incarcerated plaintiff proceed with his case 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.

         On February 22, 2019, the court ordered the plaintiff to pay an initial partial filing fee of $13.41. Dkt. No. 5. The court received that fee on March 14, 2019. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee and allow him to pay the remainder of the filing fee over time in the manner explained at the end of this order.

         II. SCREENING OF THE PLAINTIFF'S COMPLAINT

         The PLRA requires the court 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 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).

         To 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).

         To state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1) someone deprived of a right secured by the Constitution or laws of the United States and 2) whoever 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)).

         A. Facts Alleged in the Complaint

         On June 7, 2017, the plaintiff was an inmate in the restricted housing unit at the Milwaukee County Jail. Dkt. No. 1 at 2. At that time, defendant David Clarke was the sheriff of Milwaukee County. Id. The plaintiff says that William Little and CO Dantzler were correctional officers at the jail. Id.

         Around 11:09 a.m. on June 7, 2017, Dantzler woke up the plaintiff and told him it was time for “his rec and shower.” Id. at 2. Dantzler put the plaintiff in arm restraints, after which the plaintiff was let out of his cell; the plaintiff's cell was on the upper level of the unit. Id. at 2-3. Dantzler assisted the plaintiff to the lower level, where the shower area and rec area were located. Id. at 3. Dantzler gave the plaintiff towels and clothes, and the plaintiff got into the shower with shackles on. Id.

         After finishing his shower, the plaintiff went upstairs to drop off his towels. Id. When he tried to go back downstairs to finish his rec time, he “slipped and fell injuring his arm hip and back.” Id. The plaintiff states that he tried to get up but couldn't due to the pain. Id.

         “After a couple minutes, ” Little came in and told the plaintiff that “there had been a medical emergency called.” Id. at 3-4. “A couple minutes later, ” medical staff arrived. Id. at 4. They evaluated the plaintiff and determined that he couldn't walk to the infirmary; another officer helped the plaintiff onto a back board and took him to the Health Services Unit, where “it was determined that the plaintiffs injuries were great enough that [he] would ...


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