United States District Court, E.D. Wisconsin
William C. Griesbach, District Judge United States District
who is currently serving a state prison sentence at Robert E.
Ellsworth Correctional Center and representing herself, filed
a complaint under 42 U.S.C. § 1983, alleging that her
civil rights were violated. This matter comes before the
court on Plaintiff's motion for leave to proceed without
prepaying the full filing fee and to screen the complaint.
to Proceed without Prepayment of the Filing Fee
has requested leave to proceed without prepayment of the full
filing fee (in forma pauperis). A prisoner plaintiff
proceeding in forma pauperis is required to pay the
full amount of the $350.00 filing fee over time. See
28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified
copy of her prison trust account statement for the six-month
period immediately preceding the filing of her complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been
assessed and paid an initial partial filing fee of $49.25.
Plaintiff's motion for leave to proceed without prepaying
the filing fee will be granted.
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, Plaintiff is required to provide a “short and
plain statement of the claim showing that [she] 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).
alleges that the Wisconsin Department of Corrections failed
to properly maintain the prison, which caused Plaintiff to
seriously harm herself. The only named defendant, the
Wisconsin Department of Corrections, is not a proper
defendant because it is not a suable entity under §
1983. See Castillo v. Cook County Mail Room Dept.,
990 F.2d 304, 307 (7th Cir. 1993); Dobbey v. Ill. Dept.
of Corrs., 574 F.3d 443, 444 (7th Cir. 2009). If
Plaintiff wishes to proceed with this lawsuit, she must 1)
file an amended complaint that identifies the individual or
individuals responsible for the complained of conduct, 2)
list the individual(s) in the caption of the amended
complaint, and 3) explain what each individual did to
allegedly violate Plaintiff's rights. In other words,
Plaintiff must clearly set forth the who, what, when, and
where of what she alleges occurred. An amended complaint must
be filed on or before January 13, 2020. Failure to file an
amended complaint within this time period may result in
dismissal of this action.
is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled
“Amended Complaint.” The amended complaint
supersedes the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the
appellate court emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading.”
Id. at 1057 (citation omitted). If an amended
complaint is received, it will be screened pursuant to 28
U.S.C. § 1915A.
IS THEREFORE ORDERED that Plaintiff's motion for
leave to proceed in forma pauperis (Dkt. No. 2) is
IS FURTHER ORDERED that on or before January
13, 2020, Plaintiff shall file an amended pleading
curing the defects in the original complaint as described
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from her institution trust account
the $300.75 balance of the filing fee by collecting monthly
payments from Plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to the prisoner's trust account and forwarding
payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If Plaintiff is
transferred to another institution, the transferring
institution shall forward a copy of this Order along with
Plaintiff's remaining balance to the receiving
IS FURTHER ORDERED that copies of this order be sent
to the officer in charge of the ...