United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS (DKT. NO. 11), SCREENING PLAINTIFF’S COMPLIANT (DKT. NO. 1), AND DISMISSING THE COMPLAINT FOR FAILURE TO STATE A CLAIM
HON. PAMELA PEPPER United States District Judge
The pro se plaintiff, Roger Edwards, is a Wisconsin state prisoner. He filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his constitutional rights. In this order, the court grants the plaintiff’s motion to proceed in forma pauperis, screens the plaintiff’s complaint, and dismisses it for failure to state a claim.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Prison Litigation Reform Act applies to this case 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 a requirement 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 $350.00 filing fee over time through deductions from his prisoner account. Id.
On August 25, 2015, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $14.67. Dkt. No. 14. The plaintiff paid that fee on October 29, 2015. Accordingly, the court will grant the plaintiff’s motion for leave to proceed without pre-paying the filing fee and allow 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
The law allows a 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 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, 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 cognizable claim under the federal notice pleading system, the plaintiff shall provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The plaintiff need not 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 Atlantic 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 should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “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: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court must give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
A. Allegations in the Complaint
The plaintiff is incarcerated at Waupun Correctional Institution (WCI). He worked as a clerk in the canteen at WCI. Id. at 5. The plaintiff alleges that the defendants violated his rights under federal and state law when they issued him a conduct report for theft from the canteen, found him guilty of the charge following a disciplinary hearing, and imposed a disposition of twenty days’ loss of canteen, loss of employment, and a financial penalty of $16.08 restitution.
Specifically, on July 30, 2013, defendant Officer West issued the plaintiff Conduct Report 2345553, charging him with theft, in violation of Wis. Admin. Code § DOC 303.34. (Dkt. No. 13, Exhibit 1) West issued this report after defendant Donald Weber allegedly overheard a conversation between the plaintiff and another inmate about taking deodorant sticks from the canteen. Before issuing the conduct report, Officer West strip-searched the plaintiff and searched his cell. Staff recovered five deodorants and three tubes of toothpaste from the plaintiff’s cell.
On August 1, 2013, defendant Captain Core signed the conduct report to proceed as a major offense. The conduct report states that the “date of incident” was July 29, 2013, and it also includes the following “description of incident”:
On above date and time, I C/O II West worked as the canteen officer. On the 26th of July, Mr. Donald Weber (Canteen Staff) overheard two inmates talking about someone in canteen taking deodorant sticks from canteen. So when I returned from vacation on July 29th, I requested that the cells of the two inmates be searched by SWCH staff. Inmate Keys, Troy #246174 cell was searched and nothing was found. When Inmate Edwards, Rodger #162540 cell was searched by SWCH staff they found 5 extra deodorants and three extra toothpaste. I went back 6 months of canteen slips in Inmate Edwards’ name. There is no record of the extra items. Six months of canteen slips and 5 deodorants and 3 toothpaste accompany the report.
(Dkt. No. 13 at 2-3, Exh. 1 to Complaint.)
On August 6, 2013, defendant Captain O’Donovan held a disciplinary hearing on the conduct report. The plaintiff gave a statement at the hearing setting forth five reasons that O’Donovan should find him not guilty of the theft charge. Dkt. No. 1 at 6. First, the plaintiff took issue with the conduct report’s “date of incident” as July 29, 2013, while the “description of incident” stated that defendant Weber overheard the conversation on July 26, 2013. According to the plaintiff, it would have been impossible for the alleged theft to have occurred on July 29, 2013, because that day he was at work while his cell was being searched. Id. Second, the plaintiff stated that the conduct report did not state that he or inmate Troy Key took the deodorant, and argued that defendant Weber incorrectly implicated the plaintiff based on extremely vague information. The plaintiff also questioned defendant Weber’s decision to wait three days to report the conversation. Id. Third, the plaintiff stated that no deodorant sticks were ever identified missing following canteen inventory counts. Id. at 6-7. Fourth, he stated that reporting staff should have gone back over more than six months’ worth of canteen statements. According to the plaintiff, he could have purchased the items seven months ago, or a year ago, and the defendants’ review of canteen statements would not have uncovered that. Id. Finally, the plaintiff argued that no one witnessed him take anything from canteen, nor were any items recovered from him in transit to and from the canteen. Id.
In addition to providing his own statement at the hearing, the plaintiff alleges that his advocate, defendant A. Miller, testified that, “Ms. Kamphuis out of the business office stated that we have not sold Aqua fresh toothpaste since she’s been here.” Id. at 7. The plaintiff also alleges that inmate Troy Key testified at the hearing, denying that he and the plaintiff discussed taking anything out of the canteen and denying knowledge that the plaintiff had stolen anything from the canteen. Id.
According to the plaintiff, defendant Captain O’Donovan found the plaintiff guilty of theft based on the following evidence: the plaintiff’s statement, canteen statements, canteen orders, five deodorants, and three toothpastes. Id. at 8. The plaintiff alleges ...