Wright v. Brito et al

Filing 12

ORDER signed by Judge Pamela Pepper on 8/7/2017. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Plaintiff to submit $330.92 balance of filing fee to clerk of court. Defendants to file responsive pleading to complaint within 60 days. Parties shall not begin discovery until after the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Karl Christopher Wright)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KARL CHRISTOPHER WRIGHT, III,
Plaintiff,
v.

Case No. 17-cv-64-pp

OFFICER BRITO AND
J. RAMSEY GUY,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
______________________________________________________________________________
The plaintiff, who is representing himself, was confined at the
Milwaukee County Jail when he filed the complaint. Dkt. No. 1. He alleges that
the defendants violated his constitutional rights. Id. This order resolves the
plaintiff’s motion for leave to proceed without prepayment of the filing fee and
screens the plaintiff’s complaint.
I.

Motion for Leave to Proceed Without Prepaying the Filing Fee
The Prison Litigation Reform Act applies to this case because the plaintiff

was in custody when he filed the complaint. 28 U.S.C. §1915. The law allows a
court to let a prisoner proceed with his lawsuit without pre-paying the civil
case filing fee, as long as he meets certain conditions. Id. One of those
conditions is a requirement that the plaintiff pay an initial partial filing fee. 28
U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, if he still is

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a prisoner, 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 January 27, 2017, the court assessed an initial partial filing fee of
$9.53. Dkt. No. 7. The plaintiff paid that amount on February 13, 2017. The
plaintiff, however, is no longer a prisoner, so the court cannot allow him to pay
the remainder of the filing fee out of his prisoner account. The court will grant
the plaintiff’s motion for leave to proceed without prepayment of the filing fee,
and will direct the plaintiff to pay the remaining balance of the filing fee as
described at the end of this order.
II.

Screening the Complaint
A.

Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts 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
may dismiss a case, or part of it, if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915(e)(2)(B).
To state a claim under the federal notice pleading system, the plaintiff
must 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 need not plead specific
facts, and need only provide “fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
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(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Labels and
conclusions,” however, or a “formulaic recitation of the elements of a cause of
action” will not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Indeed, allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions not supported by facts “are not entitled to the
assumption of truth.” Id. Second, the court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives pro se 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)).
B.

Facts Alleged in the Complaint

The plaintiff alleges that he was confined at the Milwaukee County Jail
from May 2016 through August 2016. Dkt. No. 1 at 2. He sues Officer Brito
and Officer J. Ramsey Guy, who worked at the jail at that time. Id. at 1.

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The plaintiff alleges that between the dates of May 4 and May 17, 2016,
during first shift, the defendants beat and sodomized him in his cell. Id. He
indicates that because of his emotional state, he cannot recall the exact date,
but indicates that on the same day the incident happened, he reported it to two
lieutenants and filed a written grievance. Id. at 2. He also indicates that he
yelled to a nurse outside his cell what had happened, and that a doctor
witnessed him doing so. Id.
For relief, the plaintiff seeks monetary damages, and asks that criminal
charges be brought against the two officers.
C.

Discussion

It appears that the plaintiff was a pretrial detainee at the time of the
events he describes. His allegations appear to raise a claim that the defendants
used excessive force against him; courts review a pretrial detainee’s excessive
force claim under the Fourteenth Amendment’s due process clause. Kingsley v.
Hendrickson, ___ U.S. ___, 135 S. Ct. 2466, 2475 (2015) (citations omitted). To
prove an excessive force claim, a pretrial detainee must show that the
defendants purposefully or knowingly used force against him, and that that
force was objectively unreasonable. Id. at 2472-73. At this early stage in the
case, the plaintiff’s allegations are sufficient for the court to allow him to
proceed on an excessive force claim against Brito and Guy.
III.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee (in forma pauperis). Dkt. No. 2.
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The court ORDERS that the plaintiff shall submit the balance of the
filing fee ($330.92) to the Clerk of Court. The plaintiff shall clearly identify the
payment by the case name and number.
The court ORDERS that under the informal service agreement between
Milwaukee County and this court, copies of plaintiff’s complaint and this order
are being electronically sent to Milwaukee County for service on defendants
Brito and Guy.
The court also ORDERS that, under the informal service agreement
between Milwaukee County and this court, the defendants shall file a
responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
The court ORDERS that the parties shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that the plaintiff shall submit all correspondence and
legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the case. Because the clerk will
electronically scan and enter on the docket each document upon receipt, the
plaintiff need not mail copies to the defendants. All defendants will be served
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electronically through the court’s electronic case filing system. The plaintiff
should retain a personal copy of each document filed with the court.
The court advises the plaintiff that failure to timely file pleadings and
other documents may result in the dismissal of this case for failure to
prosecute. The parties must notify the Clerk of Court of any change of address.
Failure to do so could result in orders or other information not being timely
delivered, thus affecting the legal rights of the parties.
Dated in Milwaukee, Wisconsin this 7th day of August, 2017.
BY THE COURT:

________________________________________
HON. PAMELA PEPPER
United States District Judge

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