United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY, District Judge.
In this civil action, plaintiff Roy Collins, an inmate at Columbia Correctional Institution (“CCI”), alleges defendants, employees of the Wisconsin Department of Corrections (“DOC”), violated his First Amendment rights in refusing to send outgoing mail. Before the court is defendants’ motion to dismiss, in which they assert several bases for dismissal. (Dkt. #9.) For the reasons that follow, the court will deny defendants’ motion in its entirety.
ALLEGATIONS OF FACT
On January 30, 2012, Collins placed an outgoing First Class letter in the institution’s mailbox, to be mailed to a female friend incarcerated in a different state. Collins contends that in the letter, he “shared some of his previous personal sexual experiences.” (Compl. (dkt. #1-2) ¶ 25.) Consistent with DOC policy governing inmate-to-inmate mail, Collins left the letter open for staff review of its contents.
Defendant Erin Bergland determined that Collins’ letter constituted “written pornography” in violation of DOC rules and refused to mail it out. (Id. at ¶ 26.) Collins contends that the letter neither described sexual behavior in a patently offensive way, nor did it lack educational value. “The sexual content of the letter was no more graphic than the sex scenes permitted in an R-rated movie.” (Id. at ¶ 28.) Allegedly, contrary to DOC policy requiring staff to submit a notice of non-delivery of mail, Bergland left the letter wedged between the crack of his cell door with a post-it-note explaining that the letter was not permitted. In materials submitted with this complaint, Collins represents that he does “not have the letter anymore because I was upset about . . . Bergland not sending” out the mail. (Record from Circuit Court, Ex. 3 (dkt. #3-3).)
On or about February 22, 2012, Collins attempted to mail another outgoing First Class letter to a female friend incarcerated in Louisiana. In this letter, “Collins wrote a short fiction love-story/romantic fantasy (which the female friend requested).” (Id. at ¶ 32.) On February 23, 2012, Collins found this letter left wedged in a crack of his cell door with a warning slip and post-it note from Bergland indicating that the content of the letter constituted written pornography in violation of DOC rules. Again, in doing so, Collins alleges that Bergland failed to complete a notice of non-delivery of mail as required by DOC regulations.
A Unit Manager read the second letter and determined that Bergland erred in refusing to mail it. Although Collins does not allege it expressly, this letter was apparently then mailed. Even so, Collins claims that then-Warden of CCI Michael Meisner “still approved, authorized and permitted” Bergland’s conduct, and that Bergland “still continues to assert that it is a violation of DOC rules for inmates to include any kind of sexual conduct in outgoing letters” and “threatened disciplinary action for protected conduct.” (Id. at ¶¶ 37-38, 40.)
Defendants posit five grounds for dismissal of some or all of Collins’ claims, which the court addresses in turn.
I. Claims against Meisner
First, defendants contend that the claims asserted against Meisner should be dismissed because the allegations asserted do not meet the requirements of Federal Rule of Civil Procedure 8. To satisfy Rule 8, plaintiff need not provide detailed factual allegations, but must provide “just enough facts to raise [the claim] above the level of mere speculation.” Riley v. Vilsack, 665 F.Supp.2d 994, 997 (W.D. Wis. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”)). A plaintiff must provide enough facts to state a claim that is plausible on its face and allow the “court to infer more than the mere possibility of misconduct.” Iqbal, 556 U.S. at 679. Complaints that merely provide vague and conclusory allegations are insufficient to state a claim for supervisory liability; rather, the complaint must be sufficiently detailed “to 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)) (quotation marks and ellipses omitted).
Here, Collins’ complaint simply alleges that Meisner “approved, authorized and permitted” Bergland’s actions. (Compl. (dkt. #1-2) ¶¶ 31, 37.) This allegation, however, qualifies as the very type of vague and conclusory allegation rejected by the Supreme Court in Iqbal and Twombly. In his opposition to defendants’ motion, Collins elaborates by alleging that Meisner approved, authorized and permitted Bergland’s actions by deciding Meisner’s “formal grievance of this matter.” (Pl.’s Opp’n (dkt. #12) 4.) The court finds that this additional factual allegation -- namely, additional detail as to how Meisner approved, authorized and permitted Bergland’s actions -- is sufficient to form a basis for Collins’ conclusory allegation in his complaint. While defendants are correct that the court must consider plaintiff’s complaint in assessing Rule 8, here, in light of Collins’ pro se status, the court will treat that portion of Collins’ opposition brief as an amendment to paragraphs 31 and 37 of his complaint. Accordingly, the court will deny defendants’ motion to dismiss claims against Meisner under Rule 8.
II. State Law Negligence Claims
Next, defendants argue that Collins’ state law negligence claims should be dismissed as to both defendants because Collins failed to plead and establish an exception to public officer immunity. The court is puzzled by defendants’ first argument. While defendants direct the court to cases requiring an affirmative allegation that an exception to public officer immunity applies, in the very next paragraph, defendants acknowledge that Collins “invokes the ministerial duty exception” in his complaint. (Defs.’ Br. (dkt. #10) at 6 (citing Compl. (dkt. #1-2) ¶ 54.) Indeed, in his complaint plaintiff adequately alleges that both defendants “have ministerial duties to comply with the established provisions and ...