UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ERIC EMMANUEL ELM,

Plaintiff,

v. Case No. 19-C-1890

LOCKED AND LOADED TRANSPORT AGENCY and BROWN COUNTY JAIL,

Defendants.

SCREENING ORDER

Plaintiff Eric Emmanuel Elm, who is currently housed at the Brown County Detention Center and representing himself, filed a complaint under

, alleging that his civil rights were violated. This matter comes before the court on Plaintiff’s motion for leave to proceed without prepaying the full filing fee and to screen the complaint. MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE Plaintiff has requested leave to proceed without prepayment of 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

(b)(1). Plaintiff 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

(a)(2), and has been assessed an initial partial filing fee of $20.33. On January 17, 2020, Plaintiff filed a letter indicating he did not have the funds to pay an initial partial filing fee. The court will waive the initial partial filing fee, grant Plaintiff’s motion for leave to proceed without prepaying the filing fee, and screen the complaint. SCREENING OF THE COMPLAINT 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,

(1992); Neitzke v. Williams,

(1989); Hutchinson ex rel. Baker v. Spink,

(7th Cir. 1997). To state a cognizable claim under the federal notice pleading system, 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). The court accepts the factual allegations as true and liberally construes them in

the plaintiff’s favor. Turley v. Rednour,

(7th Cir. 2013). Nevertheless, the complaint’s allegations “must be enough to raise a right to relief above the speculative level.” Twombly,

(citation omitted). ALLEGATIONS OF THE COMPLAINT Plaintiff alleges that on December 9, 2019, Plaintiff was brought to the “Lima pad” in the Brown County Jail to go to court. The “Lima pad” is apparently akin to a sally port. When officers from the Locked and Loaded Transport Agency picked him up for transport, he noticed that one of the officers’ guns was unlocked in its holster. Plaintiff claims that, because the gun was not locked in its holster, anyone could have taken the gun and someone could have lost their life. THE COURT’S ANALYSIS Plaintiff names Locked and Loaded Transport Agency and the Brown County Jail as

defendants. The Jail is not a suable entity under § 1983, and it will therefore be dismissed as a defendant. See Smith v. Knox Cty. Jail,

(7th Cir. 2012). Liability under § 1983 “requires personal involvement in the alleged constitutional deprivation.” Colbert v. City of Chicago,

(7th Cir. 2017) (citation omitted); see also Wolf-Lillie v. Sonquist,

(7th Cir. 1983) (“Section 1983 creates a cause of action based on personal liability and predicated upon fault.”). In this case, Plaintiff improperly named the transport agency as a defendant and did not name any officers who allegedly violated his rights. Even if Plaintiff had properly named defendants in this action, he has failed to state a claim upon which relief can be granted. Plaintiff claims that someone could have been harmed by the officer’s failure to lock his gun in its holster. An inmate can prevail on a claim that a prison

official failed to protect him if the official showed “deliberate indifference,” that is, that the defendant was subjectively aware of and disregarded a “substantial risk of harm” to the inmate. Farmer v. Brennan,

(1994). Here, it is implausible that the guard was deliberately indifferent to Plaintiff’s safety, as his own safety would likely have been endangered more directly if an inmate were to try to take his gun. Additionally, Plaintiff’s assertion of a risk of harm is speculative at best. His complaint contains no allegation that Plaintiff suffered from any harm arising from his concerns or of credible danger. Accordingly, Plaintiff has failed to state a claim upon which relief can be granted. This plaintiff 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,

(7th Cir. 1992) (quoting Williams v. Faulkner,

(7th Cir. 1988), aff'd sub nom. Neitzke v. Williams,

(1989)).

CONCLUSION IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED pursuant to

(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

(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 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 $10.00 in accordance with

(b)(2). The payments shall be clearly identified by the case name and number assigned to this action. If 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 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 and emailed to [email protected]. Dated at Green Bay, Wisconsin this 21st day of January, 2020. s/ William C. Griesbach William C. Griesbach, District Judge United States District Court

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 non-meritorious. See

(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.

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.