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Jackson v. Slome

United States District Court, E.D. Wisconsin

January 7, 2016

DEBRADRE D. JACKSON, Plaintiff,
v.
SGT. SLOME, et al., Defendants.

DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), DENYING WITHOUT PREJUDICE HIS MOTION FOR A JURY TRIAL (DKT. NO. 8), AND SCREENING PLAINTIFF’S COMPLAINT (DKT. NO. 1)

HON. PAMELA PEPPER United States District Judge

The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. This order resolves the plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 2) and his demand for a jury trial (Dkt. No. 8) and screens the plaintiff’s complaint.

I. Plaintiff’s Motion for Leave to Proceed In Forma Pauperis

The Prison Litigation Reform Act applies to this action because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the civil case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

On July 20, 2015, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $9.03. Dkt. No. 7. The plaintiff paid the partial filing fee on August 3, 2015. The court grants the plaintiff’s motion for leave to proceed in forma pauperis, and allows the plaintiff to pay the balance of the $350.00 filing fee over time from his prisoner account, as described at the end of this order.

II. Screening of the Plaintiff’s Complaint

A. The Law Governing Screening of Complaints

The law requires the court 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 part or all of a complaint if the 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).

A claim is legally frivolous when “it lacks an arguable basis either in law or in fact.” Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is “based on an indisputably meritless legal theory” or where the “factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

To state a claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead specific facts, and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting 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 alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

In considering whether a complaint states a claim, courts follow the principles set forth in Twombly. First, they must “identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id. Second, if there are well-pleaded factual allegations, courts must “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that the defendants: 1) deprived of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

B. The Plaintiff’s Allegations

The plaintiff currently is incarcerated at Racine Correctional Institution (“RCI”). Dkt. No. 1 at 1. The complaint names the following RCI officials: Sgt. Slome, Lt. Curtis, Lt. Londre, Cpt. Wiegand, Security Director J. Aldana, Deputy Warden Ronald Malone, Librarian Ms. Graba, and Warden Paul Kemper. He also sues RCI and the Wisconsin Department of Corrections. Id. The plaintiff requests damages in the amount of $80, 000. Id. at 15.

The complaint states that on March 4, 2015, the plaintiff went to the RCI library to get three affidavits he wished to use in an appeal notarized by defendant Graba. He alleges that Graba refused to notarize the affidavits and confiscated them. Graba said she was confiscating the affidavits at the direction of security, but the plaintiff alleges this statement was untrue. Id. at 2.

Sometime thereafter, Sgt. Slome gave plaintiff a conduct report for “group resistance and petitions, enterprising and fraud, and possession of contraband.” Id. at 3. Aldana processed the conduct report as a “major disciplinary” violation. Id. On March 23, 2015, Aldana ordered Londre to dismiss the report due to unsupported evidence. Id. The complaint alleges that the plaintiff’s inmate complaint was rejected on April 13, 2015, and that defendant Kemper affirmed that rejection on April 27, 2015. Id. With regard to the confiscated materials, the plaintiff alleges that no one returned them, id., despite the fact that Aldana agreed to do so and ordered a non-defendant named Lt. Mickels to do so, id. at 7. The plaintiff argues that while the warden “insists” that the materials were returned to the plaintiff, “[t]he plaintiff is deprived of his property.” Id.

On March 23, 2015, Slome asked the plaintiff about the hearing on the above referenced conduct report. Id. at 5. The plaintiff informed Slome that the conduct report had been dismissed. On March 26, 2015, Slome and another officer searched and confiscated 111 pages of the plaintiff’s legal documents. Id. Slome wrote a confiscation form and said to the plaintiff, “I am not writing you a ticket just to get it threw [sic] out, I am forwarding the confiscated items to the security director and let him make the decision.” Dkt. No. 1 at 6. Slome also informed the plaintiff that he was confiscating the plaintiff’s materials because of his participation in the “Sovereign Citizen Movement” and because he had renounced his U.S. citizenship. Dkt. No. 1 at 8, 9.

On March 27, 2015, Wiegand wrote a conduct report accusing the plaintiff of “group resistance and petitions” and “unauthorized use of mail, ” id. at 6, even though he admitted that he did not know how the plaintiff’s legal work constituted group resistance, id. at 8-9. Curtis authorized the placement of the plaintiff into “TLU status” (the complaint does not explain what this means) pending a due process hearing. Id. at 6. The plaintiff informed Curtis that the staff was harassing him and this lockup was in retaliation for Slome‚Äôs ...


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