UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

OTIS GORDON,

Plaintiff,

v. Case No. 23-cv-427-bhl

JED MARTIN,

Defendant.

SCREENING ORDER

Plaintiff Otis Gordon, who is currently serving a state prison sentence at the Oakhill Correctional Institution and representing himself, filed a complaint under

, alleging that his civil rights were violated. This matter comes before the Court on Gordon’s motion for leave to proceed without prepayment of the filing fee and to screen the complaint. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE Gordon 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). Gordon 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 $7.04. The Court will grant Gordon’s motion for leave to proceed without prepaying the filing fee. 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,

(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 On April 20, 2022, Defendant Police Officer Jed Martin detained Gordon on suspicion of a hit and run and fourth OWI. Dkt. No. 1 at 2. He took Gordon to the St. Agnes Hospital for “OWI processing,” which included a blood draw to determine his blood alcohol content.

While at the hospital, Martin completed an affidavit in support of a blood draw that contained false information. Id. at 2-3. For relief, Gordon seeks monetary damages. Id. at 4. THE COURT’S ANALYSIS “To state a claim for relief under

, 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.,

(7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee,

(7th Cir. 2009)).

Gordon asks to proceed on a Fourth Amendment claim against Martin. Dkt. No. 1 at 2. “The Fourth Amendment guards the ‘right of the people to be secure in their persons…against unreasonable searches’ and provides that ‘no Warrants shall issue, but upon probable cause.’” Mitchell v. Wisconsin,

(2019). A blood draw is a “search” of the person under the Fourth Amendment. See Birchfield v. North Dakota,

(2016). Thus, a search warrant for a blood draw must be supported by probable cause. Gordon alleges that Martin provided false statements to acquire a search warrant for the blood draw. Based on these allegations, the Court can reasonably infer that the search warrant used to draw his blood may have lacked probable cause. Accordingly, Gordan may proceed on a Fourth Amendment claim that Martin conducted an unreasonable search on April 20, 2022 by taking a blood draw without probable cause. CONCLUSION The Court finds that Plaintiff may proceed on a Fourth Amendment claim that Martin conducted an unreasonable search on April 20, 2022 by taking a blood draw without probable cause. IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed without prepayment of the filing fee (Dkt. No. 2) is GRANTED. IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the complaint and this order upon Martin 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.

(a). The current fee for waiver-of-service packages is $8.00 per item

mailed. The full fee schedule is provided at

(a)(2)–(3). Although Congress requires the Court to order service by the U.S. Marshals Service precisely because in forma pauperis plaintiffs are indigent, it has not made any provision for these fees to be waived either by the Court or by the U.S. Marshals Service. The Court is not involved in the collection of the fee. IT IS FURTHER ORDERED that Martin shall file a responsive pleading to the complaint. IT IS FURTHER ORDERED that copies of the complaint and this order be sent to the City Attorney for the City of Fond du Lac. IT IS FURTHER ORDERED that the agency having custody of Plaintiff shall collect from his institution trust account the $342.96 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 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 parties may not begin discovery until after the Court enters a scheduling order setting deadlines for discovery and dispositive motions. IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing Program institutions must submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the Court. The Prisoner E-Filing Program is mandatory for all inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge

Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution, and Oshkosh Correctional Institution. Plaintiffs who are inmates 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

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’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 action for failure to prosecute. 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 on May 30, 2023. s/ Brett H. Ludwig BRETT H. LUDWIG United States District Judge