Yancey v. City of Milwaukee et al

Filing 7

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 10/4/2021. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; institution having custody of Plaintiff to COLLECT the balance of the filing fee as directed. Plaintiff may PROCEED on a claim of excessive force, in violation of the Fourth Amendment, against Defendant Robert Park. USMS to SERVE a copy of the Complaint and this Order on Defendant, who shall FILE a responsive pleading. See Order. (Attachments: # 1 Prisoner & Pro Se Guides) (cc: all counsel, via mail to Isaiah G Yancey and Sheriff (Order Only) at Milwaukee County Jail)(jm)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN ISAIAH G. YANCEY, Plaintiff, v. Case No. 21-CV-212-JPS ROBERT PARK, Defendant. ORDER Plaintiff Isaiah G. Yancey, an inmate confined at the Milwaukee County Jail, filed a pro se complaint under 42 U.S.C. § 1983 alleging that Defendant Robert Park (“Officer Park”) violated his Fourth Amendment rights. (Docket #1). This order resolves Plaintiff’s motion for leave to proceed without prepaying the filing fee and screens his complaint. 1. 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 April 9, 2021, the Court ordered Plaintiff to pay an initial partial filing fee of $235.24. (Docket #6). Plaintiff paid that fee on May 13, 2021. The Court will grant Plaintiff’s motion for leave to proceed without prepaying the filing fee. (Docket #2). He must pay the remainder of the filing fee over time in the manner explained at the end of this order. 2. SCREENING THE COMPLAINT 2.1 Federal Screening Standard Under the PLRA, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 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, the Court applies 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)). 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 Atl. 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 Cnty. Sch. Corp., 799 Page 2 of 6 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints liberally and holds 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)). 2.2 Plaintiff’s Allegations On July 14, 2020, Plaintiff was arrested by City of Milwaukee Police officers, including Officer Park. (Docket #1 at 3-5). During the arrest, Officer Park’s gun went off and Plaintiff’s right foot was shot. (Id. at 4). Notably, Plaintiff was handcuffed at the time Officer Park’s gun went off. (Id. at 4-5). Plaintiff alleges that he suffered excruciating pain from the bullet wound for months. (Id. at 4). 2.3 Analysis Plaintiff’s allegations invoke his rights under the Fourth Amendment because Plaintiff was under arrest at the time of the alleged incident. See Graham v. Connor, 490 U.S. 386, 388, 395 (1989) (“all claims that law enforcement officers have used excessive force–deadly or not–in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment”). An excessive force claim under the Fourth Amendment uses an “objective reasonableness” standard. Id. Factors relevant to the reasonableness of an officer’s actions include “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396. Additionally, “[t]he inquiry requires an examination of the ‘totality of the circumstances to determine whether the intrusion on the citizen’s Fourth Amendment interests was justified by the countervailing government Page 3 of 6 interests at stake.’” Cyrus v. Town of Mukwonago, 624 F.3d 856, 861 (7th Cir. 2010) (quoting Jacobs v. City of Chicago, 215 F.3d 758, 773 (7th Cir. 2000)). At the screening stage, Plaintiff’s allegations support a claim against Officer Park for use of excessive force in violation of the Fourth Amendment during the arrest on July 14, 2020. 3. CONCLUSION In light of the foregoing, the Court finds that Plaintiff may proceed on the following claim pursuant to 28 U.S.C. § 1915A(b): Claim One: The use of excessive force against Plaintiff, in violation of the Fourth Amendment, by Defendant Robert Park on July 14, 2020. Accordingly, IT IS ORDERED that Plaintiff’s motion for leave to proceed without prepaying the filing fee (Docket #2) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that the U.S. Marshals Service shall serve a copy of the complaint and this order upon Defendant Robert Park pursuant to Federal Rule of Civil Procedure 4. Plaintiff is advised that Congress requires the U.S. Marshals Service to charge for making or attempting such service. 28 U.S.C. § 1921(a). Although Congress requires the Court to order service by the U.S. Marshals Service, it has not made any provision for these fees to be waived either by the court or by the U.S. Marshals Service. The current fee for waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3). The U.S. Marshals Service will give Plaintiff information on how to remit payment. The Court is not involved in collection of the fee; IT IS FURTHER ORDERED that Defendant Robert Park shall file a responsive pleading to the complaint; Page 4 of 6 IT IS FURTHER ORDERED that the agency having custody of Plaintiff shall collect from his institution trust account the $114.76 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 Plaintiff’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 case. If Plaintiff is transferred to another county, state, or federal institution, the transferring institution shall forward a copy of this order along with his remaining balance to the receiving institution; IT IS FURTHER ORDERED that a copy of this order be sent to the officer in charge of the agency where Plaintiff is confined; IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a copy of the guides entitled “Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro Se Litigants’ Common Questions,” along with this order; and IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing Program institutions1 must submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the Court. Plaintiffs who are inmates at all other prison facilities must submit the original document for each filing to the court to the following address: The Prisoner E-Filing Program is mandatory for all inmates of Columbia Correctional Institution, Dodge Correctional Institution, Green Bay Correctional Institution, Oshkosh Correctional Institution, Waupun Correctional Institution, and Wisconsin Secure Program Facility. 1 Page 5 of 6 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 JUDGE’S CHAMBERS. It will only delay the processing of the matter. Plaintiff is further advised that failure to make a timely submission may result in the dismissal of this case for failure to diligently pursue it. In addition, 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 at Milwaukee, Wisconsin, this 4th day of October, 2021. BY THE COURT: ____________________________________ J. P. Stadtmueller U.S. District Judge Page 6 of 6

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