United States District Court, E.D. Wisconsin
DECISION AND ORDER ALLOWING PLAINTIFF TO PROCEED IN FORMA PAUPERIS, DENYING AS MOOT THE PLAINTIFF’S MOTION FOR USE OF PRISON RELEASE ACCOUNT TO PAY PARTIAL FILING FEE (DKT. NO. 8), SCREENING THE PLAINTIFF’S COMPAINT, DENYING AS MOOT PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 3), DENYING AS MOOT THE PLAINTIFF’S MOTION IN LIMINE (DKT. NO. 14), AND DISMISSING CASE
HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE
The plaintiff, a state prisoner, filed this 24-page pro se complaint under 42 U.S.C. §1983, alleging that twenty-one defendants violated his civil rights. Dkt. No. 1. The case comes before the court on the plaintiff’s motion to appoint counsel, the plaintiff’s motion for use of prisoner release account to pay initial partial filing fee, and the plaintiff’s motion in limine, as well as for a determination regarding whether the plaintiff may proceed in forma pauperis and for screening of the plaintiff’s complaint.
I. IN FORMA PAUPERIS STATUS
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 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 filing fee over time, through deductions from his prisoner account. Id.
On March 12, 2015, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $7.79. Dkt. No. 7. The court received the initial partial filing fee of $7.79 on March 26, 2015. The following day, the court received from the plaintiff a motion asking the court to issue an order authorizing the prison to pay his initial partial filing fee from his prison release account. Dkt. No. 8. The court will deny as moot the plaintiff’s motion to use his prison release account to pay the initial partial filing fee. Dkt. No. 8. The court will allow the plaintiff to proceed in forma pauperis, and will 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.
The court notes that the plaintiff has accumulated three strikes under 28 U.S.C. §1915(g). They include: (1) Peace v. Strahota, No. 14-CV-1608 (E.D. Wis., Pepper, J) (complaint dismissed on June 22, 2015 for failure to state a claim); (2) Peace v. Quinn, No. 14-CV-1590 (E.D. Wis., Pepper, J.) (complaint dismissed on September 24, 2015 for failure to state a claim); and (3) Peace v. Lewis, No. 15-CV-561 (E.D. Wis., Pepper, J.) (complaint dismissed on January 21, 2016 for failure to state a claim). These strikes do not preclude the plaintiff from proceeding in forma pauperis in this case, because he filed this complaint before he had accumulated any of the three strikes, but the plaintiff should be aware that the strikes will apply to any appeals or complaints he files after January 21, 2016.
II. SCREENING OF PLAINTIFF’S AMENDED COMPLAINT
A. Standard for Screening 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 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 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. Facts Alleged in the Proposed Complaint
On October 28, 2012, defendants Johnson and Schlaefer wrote a conduct report for the plaintiff. Dkt. No. 1 at 7. They charged the plaintiff with unauthorized transfer of property, and with violations of institution policies and procedures, because another inmate was caught using the plaintiff’s headphones. Dkt. No. 1-1 at 1. According to the conduct report, Schlaefer noticed that inmate Maggett had a set of headphones plugged into another inmate’s television. The report indicates that investigation uncovered that the headphones belonged to the plaintiff, and that the plaintiff “admitted giving Maggett his headphones.” Id. While the complaint purported to be written in the first person by Schlaefer, COII Johnson signed it. Id.
While the complaint is not clear, it appears that defendant Boodry served the plaintiff with the conduct report. Dkt. No. 1 at 7. The plaintiff told Boodry that he was in the bathroom when the headphone incident happened, and that Johnson was not there. Id. Defendant Boodry asked for a minute and went to talk with defendant Hinicikle, who is the unit’s sergeant. Id. When Boodry came back, he told the plaintiff he was going to give him a reprimand. Id.
After Boodry left, Johnson called the plaintiff back to the sergeant’s station and said, “you got away this time, but we’ll get you again.” Id. The plaintiff waited for Johnson to leave the sergeant’s station and then reported to Hinicikle that Johnson threatened him. Id. Hinicikle said, “you should take his comment with a grain of salt.” Id.
Later that day, the plaintiff asked Johnson why he wrote the ticket for Schlaefer. Id. The plaintiff explained that he had come out of the bathroom, and that Schlaefer had told the plaintiff to give her his headphones. Id. Johnson responded, “I don’t care where you were. Just tell us that Maggett stole your headphones. You said he had them, you didn’t give them to him. The only thing you have to do is tell us Maggett stole them, and the ticket will go away.” Id.
The plaintiff submitted an inmate complaint that night regarding Johnson’s conduct. Id. The plaintiff received a response from the inmate complaint examiner (ICE) that said the plaintiff had to talk to the unit manager before he could send an inmate complaint. Id. The ICE said to submit a written response from the unit manager with the inmate complaint. Id.
Days later, the plaintiff asked defendant Vires if he could get a job in the bathroom. Id. Vires said, “the Sgt. said you can’t get a job.” Id. The plaintiff asked why and Vires said, “you probably got someone mad.” Id. Every week, the plaintiff asked Vires if he could get a job, and Vires kept saying no. Id.
One day, the plaintiff went to Hinicikle and asked why he could not get a job, and Hinicikle said, “because of that conduct report you received.” Id. The plaintiff decided to write the Security Director a letter on an inmate complaint form explaining his issues. Id. at 8. “A bit after” the plaintiff wrote the letter, Vires gave the plaintiff a job cleaning the showers part time. Id. Vires said, “I’m going to give you a chance to prove yourself.” Id.
The next day, Schlaefer called the plaintiff to the officer’s station after lunch and asked if Vires had said the plaintiff could work in the bathroom. Id. The plaintiff said, “Yes, why?” Id. Schlaefer told the plaintiff that the sergeant said he was not supposed to get a job. Id.
Schlaefer woke the plaintiff and told him that Johnson wanted him in the bathroom. Id. Johnson said that he wanted the plaintiff to fix the septic system. Id. After the plaintiff finished, he reported to Hinicikle, “Johnson is harassing me. He made me clean the septic system, he knows the person who cleaned the toilets and urinals, suppose[d] to do that.” Id. Hinicikle told the plaintiff that he gets paid to work in the bathroom and that Johnson can pick anyone who works in the bathroom. Id.
Ultimately, the plaintiff was moved to cleaning the dayroom. Id. As part of that assignment, Johnson instructed the plaintiff to clean up some urine on the floor. Id. The plaintiff told defendant Frend that Johnson was harassing him and making him do other people’s jobs. Id. Frend said, “I don’t care, get away from here.” Id.
On February 11, 2013, the plaintiff complained of bugs (silverfish) in his locker, and an officer put in a work order for spray. Id. The defendant later cleaned out his locker, then fell asleep. That night, defendant Schlaefer woke the plaintiff up for a random bunk search. Id. at 8-9. Several days later, defendant Vires was joking around with another inmate and told the plaintiff that he was supposed to search his bunk. Id. at 9.
On February 16, 2013, Vires conducted a “so-called” random bunk search and brought all plaintiff’s canteen to the sergeant’s station. Id. at 9. The plaintiff was called to the interview room, where defendant Johnson questioned him about whether the plaintiff was selling canteen. Id. Johnson indicated that he was going to see about getting the plaintiff put in segregation. Id. Vires gave the plaintiff a conduct report for enterprises and fraud, unauthorized transfer of property, and lying regarding the large amounts of canteen found during the bunk search. Dkt. No. 1-1 at 2-3.
Then defendant Sandy Hautamaki called the plaintiff to her office and asked the plaintiff about the letter he sent to the Security Director. Dkt. No. 1 at 9. The plaintiff asked how she got the letter, and she said it was forwarded to her because there was not a Security Director at the time. Id. The plaintiff explained his problems with staff, and Hautamaki said she would talk to staff. Id. The plaintiff asked Hautamaki for a written response to file an inmate complaint. Id.
The plaintiff did not get a written response, and so on February 21, 2013, he wrote a letter to defendant Warden Douma, requesting protective custody. Dkt. No. 1, Ex. 3. Douma responded to the letter six days later. Dkt. No. 1-1 at 4-5. Douma denied the plaintiff’s request because it did not meet the requirements outlined in the administrative code and noted that the plaintiff’s “apparent inability to cooperate and get along with staff is not a ...