Weeks v. Foster et al
SCREENING ORDER signed by Chief Judge William C Griesbach on 9/22/2017 Granting 8 MOTION for Leave to Proceed Without Prepayment of the Filing Fee. It is further ordered that this action is DISMISSED with prejudice for failure to state a claim. Plaintiff has incurred a "strike" under 28 U.S.C. §1915(g). The Clerk of Court shall enter judgment accordingly. (cc: all counsel)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-C-1129
BRIAN FOSTER and
The plaintiff, who is incarcerated at Waupun Correctional Institution, 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 petition for leave to proceed without prepaying the full filing fee.
Weeks is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Weeks has filed a certified copy of his prison trust account statement
for the six-month period immediately preceding the filing fee of his complaint, as required under 28
U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $2.03. In a letter
to the court, Weeks indicated that he has asked staff members at the institution to pay his initial
partial filing fee from his release account, but has received no response. The court finds that Weeks
lacks the funds to pay the partial filing fee. Therefore, the court waives the initial partial filing fee.
28 U.S.C. § 1915(b)(4).
The 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).
To 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 Twombly, 550 U.S. at 570). 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).
Weeks alleges that, while he was in segregation, the defendants damaged his televison set
when they transported it to the property department. As damages, he seeks the costs associated with
repairing the television and with bringing this lawsuit. At most, Weeks’ allegations advance a state
law negligent claim. The negligent conduct on the part of a state official, however, is insufficient to
state a constitutional violation. See Daniels v. Williams, 474 U.S. 327, 328 (1986) (finding that “the
Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss
of or injury to life, liberty or property.”). This court has no jurisdiction over Weeks’ state law claim.
See 28 U.S.C. § 1332. Therefore, Week’s state law claim will be dismissed. Although Weeks is
foreclosed from pursuing this claim in federal court, Wisconsin law provides remedies to individuals
whose property has been damaged by another. See Wis. Stat. §§ 893.35; 893.51.
On September 15, 2017, Weeks filed a letter with the court indicating that, as a result of
filing the instant lawsuit, he has been discriminated and retaliated against by prison staff. ECF No.
12. Weeks’ concerns, however, are unrelated to the claim asserted in his complaint and do not arise
out of the same transaction, occurrence, or series of transactions or occurrences as that claim. See
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). If Weeks believe he has grounds to assert a
new claim, he may file a separate action.
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 8) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a federal claim.
IT IS ALSO ORDERED that the Clerk of Court document that this inmate has incurred a
"strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $350.00 balance of the filing fee by collecting monthly
payments from the 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 the
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 institution.
IT IS ALSO ORDERED that the Clerk of Court enter judgment accordingly.
SO ORDERED this 22nd day of September, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
This order and the judgment to follow are final. The plaintiff may appeal this court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this court a notice of appeal within 30 days of the entry of
judgment. See Fed. R. App. P. 3, 4. This court may extend this deadline if a party timely requests an
extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline. See
Fed. R. App. P. 4(a)(5)(A). If the plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If the plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. § 1915(g). If the plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
Under certain circumstances, a party may ask this court to alter or amend its judgment under Federal Rule
of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of judgment.
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of judgment. The court cannot extend these deadlines. See Fed. R.
Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.
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