Ellison v. Maciejewski

Filing 15

ORDER signed by Chief Judge Pamela Pepper on 3/26/2024. 10 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect $324.31 balance of filing fee from plaintiff's pri son trust account under 28 USC §1915(b)(2). Defendant to file responsive pleading to complaint within 60 days. (cc: all counsel and mailed to Warden and Deshawn Ellison at Green Bay Correctional Institution-with "Answers to Prisoner Litigants' Common Questions")(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DESHAWN ELLISON,
Plaintiff,
v.

Case No. 23-cv-1447-pp

DYLAN MACIEJEWSKI,
Defendant.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING FILING FEE (DKT. NO. 10) AND SCREENING
COMPLAINT UNDER 28 U.S.C. §1915A
______________________________________________________________________________
Plaintiff Deshawn Ellison, who is incarcerated at Green Bay Correctional
Institution and is representing himself, filed a complaint under 42 U.S.C.
§1983, alleging that the defendant violated his constitutional rights. This
decision resolves the plaintiff’s motion for leave to proceed without prepaying
the filing fee, dkt. no. 10, and screens his complaint, dkt. no. 1.
I.

Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 10)
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h).
The PLRA lets the court allow an incarcerated plaintiff to proceed with his case
without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds
exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1).
He then must pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
On January 10, 2024, the court ordered the plaintiff to pay an initial
partial filing fee of $25.69. Dkt. No. 12. The court received that fee on February
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9, 2024. The court will grant the plaintiff’s motion for leave to proceed without
prepaying the filing fee and will require him to pay remainder of the filing fee
over time in the manner explained at the end of this order.
II.

Screening the Complaint
A.

Federal Screening Standard

Under the PLRA, the court must screen complaints brought by
incarcerated persons seeking relief from a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. §1915A(a). The court must
dismiss a complaint if the incarcerated plaintiff 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 it applies when considering whether to dismiss a case
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)). To state a claim, 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 Atlantic 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).

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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 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 liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints 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)).
B.

The Plaintiff’s Allegations

The plaintiff alleges that on May 22, 2023, defendant Officer Maciejewski
opened his cell door at the request of “inmate Wright” who then entered the
plaintiff’s cell and assaulted him. Dkt. No. 1 at 2. The plaintiff states that the
defendant’s action was “against DOC protocol[.]” Id. The plaintiff alleges that he
was forced to protect himself from the assault, which would not have happened
if the defendant had not opened his door. Id. He states that as a result, he
received a conduct report for fighting and now has extreme anxiety every time
the door is opened. Id. at 2-3. For relief, the plaintiff seeks compensatory
damages and injunctive relief. Id. at 4.
C.

Analysis

The Eighth Amendment requires prison officials to protect incarcerated
persons from violence at the hands of other incarcerated persons. See Farmer
v. Brennan, 511 U.S. 825, 833-34 (1994). Prison officials who do not protect
one incarcerated individual from another may be found liable under the Eighth
Amendment only if two requirements are met: first, the incarcerated individual
must have been exposed to a risk of objectively serious harm, and second, the
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prison official must have had actual knowledge of that risk and responded with
deliberate indifference. See LaBrec v. Walker, 948 F.3d 836, 841 (7th Cir.
2020); see also Farmer, 511 U.S. at 837-38; Brown v. Budz, 398 F.3d 904, 913
(7th Cir. 2005).
The plaintiff alleges that the defendant opened the plaintiff’s cell door at
the request of another incarcerated individual and that, when the door was
opened, the individual entered the plaintiff’s cell and assaulted him. Construed
liberally, the plaintiff’s allegations permit an inference that the defendant
knowingly exposed the plaintiff to a risk of serious harm by opening the
plaintiff’s cell door. The plaintiff may proceed on an Eighth Amendment claim
against the defendant in his individual capacity.
III.

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

prepaying the filing fee. Dkt. No. 10.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court will electronically transmit a copy of the
complaint and this order to the Wisconsin Department of Justice for service on
defendant Dylan Maciejewski. Under the informal service agreement, the court
ORDERS that defendant to file a responsive pleading to the complaint within
sixty (60) days.
The court ORDERS that the agency that has custody of the plaintiff must
collect from his institution trust account the $324.31 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 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).
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The agency must clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the
transferring institution must forward a copy of this order, along with the
plaintiff's remaining balance, to the receiving institution.
The court will send a copy of this order to Green Bay Correctional
Institution, where the plaintiff is confined.
The court ORDERS that the parties must not begin discovery until after
the court enters a scheduling order setting deadlines for completing discovery
and filing dispositive motions.
The court ORDERS that plaintiffs who are incarcerated at Prisoner EFiling 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 incarcerated at all other prison facilities must submit the original
document for each filing to the court to the following address:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises the plaintiff that, if he fails to file documents or take
other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to diligently pursue it. The parties must notify the

The Prisoner E-Filing Program is mandatory for all individuals incarcerated at
Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
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clerk of court of any change of address. The court also advises the plaintiff that
it is his responsibility to promptly notify the court if he is released from custody
or transferred to a different institution. The plaintiff’s failure to keep the court
advised of his address may result in the court dismissing this case without
further notice.
The court will include a guide prepared by court staff to address common
questions that arise in cases filed by prisoners. Entitled “Answers to Prisoner
Litigants’ Common Questions,” this guide contains information that the
plaintiff may find useful in prosecuting his case.
Dated in Milwaukee, Wisconsin, this 26th day of March, 2024.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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