Lisinski v. Ober
ORDER signed by Judge Brett H Ludwig on 9/16/22 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. This action is DISMISSED pursuant to 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. Clerk of Court shall document that this inmate has incurred a "strike" under 28 U.S.C. §1915(g). (cc: all counsel and mailed to pro se party, warden)(jad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERICK J. LISINSKI,
Case No. 22-cv-745-bhl
Plaintiff Erick J. Lisinski, who is currently serving a state prison sentence at Waupun
Correctional Institution and representing himself, filed a complaint under 42 U.S.C. §1983,
alleging that his civil rights were violated. This matter comes before the Court on Lisinski’s
motion for leave to proceed without prepaying the full filing fee and to screen the complaint.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
Lisinski has requested leave to proceed without prepaying 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). Lisinski has filed a certified copy of
his prison trust account statement for the six-month period immediately preceding the filing 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 $9.29. Therefore, the Court will grant Lisinski’s motion for leave to proceed
without prepaying the filing fee.
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SCREENING OF THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity, and dismiss any complaint
or portion thereof if the prisoner has raised any 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 screening a complaint, the
Court must determine whether the complaint complies with the Federal Rules of Civil Procedure
and states at least plausible claims for which relief may be granted. To state a cognizable claim
under the federal notice pleading system, a 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). It must be
at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well
as when and where the alleged actions or inactions occurred, and the nature and extent of any
damage or injury the actions or inactions caused.
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
Case 2:22-cv-00745-BHL Filed 09/16/22 Page 2 of 5 Document 11
alleged.” Id. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
ALLEGATIONS OF THE COMPLAINT
On May 10, 2022, Defendant inmate Vondelle Over went to Lisinski’s cell in North Cell
Hall and stole his radio while Lisinski was at work. Dkt. No. 1 at 2 & 4. The radio was a “WR2
Black and White with black cord.” Id. at 2. Lisinski states that he has witnesses who saw it
happen. Id. at 4; see also Dkt. No. 1-1. For relief, Lisinski seeks monetary damages. Dkt. No. 1
THE COURT’S ANALYSIS
“To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that he or she
was deprived of a right secured by the Constitution or the laws of the United States, and that this
deprivation occurred at the hands of a person or persons acting under the color of state law.” D.S.
v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). A person acts under the color of state law when
he exercises power “possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49 (1988).
Lisinski’s attempt to state a claim under §1983 fails because Over, the person he claims
stole from him, was not a state actor. An inmate is not clothed with the authority of state law and
therefore does not act under color of state law. See e.g. Mixon v. Coleman, No. 21-4137, 2021
WL 5405771, at *1 (C.D. Ill. Nov. 18, 2021) (“Plaintiff cannot sue another inmate pursuant to
§1983 because the inmate is not a state actor.”); Gulley-Fernandez v. Naseer, No. 16-CV-133,
2016 WL 2636274, at *2 (E.D. Wis. May 5, 2016) (“A fellow inmate is not a ‘state actor’ as
contemplated under § 1983.”); Stewart v. McBride, 68 F.3d 477, n.1 (7th Cir. 1995) (noting that
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an inmate is not a state actor). Accordingly, even if all the allegations in his complaint are correct,
Lisinski still fails to state a claim and the Court will dismiss this case. Boyd v. Bellin, 835 F. App'x
886, 889 (7th Cir. 2021) (noting that the Court need not provide an opportunity to amend when
doing so would be futile).
Lisinski has provided no arguable basis for relief, having failed to make any rational
argument in law or fact to support his claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir.
1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.
Williams, 490 U.S. 319 (1989)).
IT IS THEREFORE ORDERED that Lisinski’s motion for leave to proceeding without
prepayment of the filing fee (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER 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 Lisinski shall collect
from his institution trust account the $340.71 balance of the filing fee by collecting monthly
payments from Lisinski’s prison trust account in an amount equal to 20% of the preceding month’s
income credited to Lisinski’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
Lisinski is transferred to another institution, the transferring institution shall forward a copy of this
Order along with Lisinski’s remaining balance to the receiving institution.
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IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
Dated at Milwaukee, Wisconsin on September 16, 2022.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
This order and the judgment to follow are final. 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 Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If 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 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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