UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

ISAAC PHILLIPS,

Plaintiff,

v. Case No. 23-cv-0017-bhl

JAMES HENRY and TIMOTHY BRANDT,

Defendants.

SCREENING ORDER

Plaintiff Isaac Phillips, who is currently serving a state prison sentence at Fox Lake Correctional Institution and representing himself, filed a complaint under

, alleging that his civil rights were violated. This matter comes before the Court on Phillips’ motion for leave to proceed without prepaying the full filing fee and to screen the complaint. MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE Phillips 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

(b)(1). Phillips 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 and paid an initial partial filing fee of $26.43. Phillips’ motion for leave to proceed without prepaying the filing fee will be granted. 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 must 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,

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

(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.”

A complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Twombly,

. “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 alleged.”

. “[T]he complaint’s allegations must be enough to raise a right to relief above the speculative level.”

(internal quotations omitted). ALLEGATIONS OF THE COMPLAINT According to Phillips, on October 9, 2007, he pulled up to a friend’s house while a search

warrant was being executed. He asserts that two plain clothes detectives pulled him from his car and took him into the residence being searched. Phillips states that, after he was taken back outside, he was pushed up against a police car at which time one of the detectives pulled down his pants and underwear and slid something sharp between his butt cheeks. He felt violated and humiliated. Phillips explains that he was taken downtown and then to the county jail, where he complained to the intake and booking officers about what had happened. Dkt. No. 1 at 2-3. THE COURT’S ANALYSIS Phillips explains that the incident at issue occurred On October 9, 2007. At that time, the statute of limitations for §1983 actions in Wisconsin was six years. See D’Acquisto v. Love, No. 20-C-1034,

, at *1 (E.D. Wis. Oct. 8, 2020) (explaining that in 2018, the

Wisconsin legislature changed the relevant statute of limitations from six years to three years). Thus, to comply with the statute of limitations, Phillips had to file his complaint within six years of the date his claim accrued, or by October 9, 2013. Given that Phillips filed his complaint nearly ten years after that date, this action is time-barred and must be dismissed. IT IS THEREFORE ORDERED that Phillips’ motion for leave to proceed without prepaying the filing fee (Dkt. No. 2) is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED because it is time-barred under the relevant statute of limitations. IT IS FURTHER ORDERED that the agency having custody of Phillips shall collect from his institution trust account the $323.57 balance of the filing fee by collecting monthly payments from Phillips’ prison trust account in an amount equal to 20% of the preceding month’s income credited to Phillips’ trust account and forwarding payments to the Clerk of Court each time

the amount in the account exceeds $10 in accordance with

(b)(2). The payments shall be clearly identified by the case name and number assigned to this action. If Phillips is transferred to another institution, the transferring institution shall forward a copy of this Order along with Phillips’ remaining balance to the receiving institution. IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly. Dated at Milwaukee, Wisconsin on February 8, 2023. 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 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.