United States District Court, E.D. Wisconsin
TINGIA D. WHEELER, Plaintiff,
CAPTAIN CYNTHIA RADTKE, BRET MIERZEJEWSKI, WILLIAM POLLARD, and WARDEN GARY BOUGHTON, Defendants.
LYNN ADELMAN UNITED STATES DISTRICT JUDGE
The plaintiff, Tingia D. Wheeler, is a Wisconsin prisoner proceeding pro se. I previously granted him leave to proceed on several claims in his second amended complaint. See ECF No. 25. The claims arise out of events that occurred while the plaintiff was an inmate at Waupun Correction Institution, and the primary defendants are Captain Cynthia Radtke and Bret Mierzejewski, who were part of the “Gang Intelligence Unit” at Waupun. The defendants have filed a motion to dismiss some of the claims included in the second amended complaint. Although the plaintiff originally filed a brief in opposition to the motion to dismiss, he has since filed a motion in which he asks to withdraw his opposition to the motion to dismiss. See ECF No. 93. In this same motion, the plaintiff requests leave to file a third amended complaint. The plaintiff has also filed a motion asking that I screen the third amended complaint pursuant to 28 U.S.C. § 1915A. See ECF No. 104. I will grant the plaintiff’s motion to withdraw his opposition to the motion to dismiss, dismiss the second amended complaint, and grant the plaintiff’s request to file a third amended complaint. In this order, I will screen the third amended complaint. I also address several other motions filed by the parties, including the defendants’ motion to dismiss this case with prejudice as a sanction for the plaintiff’s submitting a declaration to the court that, according to the defendants, was obtained through coercion.
I. SCREENING OF THIRD AMENDED COMPLAINT
The court is required 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 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 is not necessary for the plaintiff 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 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).
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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village 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 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)).
The claims alleged in the third amended complaint arise out of two conduct reports that defendant Cynthia Radtke issued to the plaintiff. Radtke was a captain in the Gang Intelligence Unit at Waupun Correctional Institution. Radtke issued the first conduct report on January 14, 2013. That conduct report, which is #2303800, alleges that an investigation conducted in December 2012 revealed that the plaintiff occupied a leadership position within the Gangster Disciples prison gang at Waupun. Compl. ¶ 42; see also Ex. 60. Holding such a position and participating in gang activity is a violation of prison rules. See Wis. Admin. Code § DOC 303.24. The conduct report was based on information that Radtke had obtained from three confidential informants, who were themselves inmates at Waupun. The inmates asked to have their identities kept secret because they feared that they would be in danger if it became generally known within the prison that they had given testimony against Wheeler and the Gangster Disciples. The confidential witnesses stated that Wheeler and another inmate, Frederick Jones, were leaders of the gang. On February 4, 2013, following a disciplinary hearing, Wheeler was found guilty of the conduct alleged and sentenced to 360 days of disciplinary segregation. Compl. ¶ 43; see also Ex. 60.
The plaintiff alleges that his being charged with and convicted of this disciplinary offense was the result of a plot against him that was orchestrated by the Gangster Disciples. The plaintiff admits that he was once a member of the Gangster Disciples, but he contends that he had “severed ties” with that gang 16 or 17 years ago. Compl. ¶ 18. However, in April 2012, a member of the gang approached him and invited him to a meeting. Wheeler refused to attend the meeting. The gang member then threatened Wheeler with bodily harm, and the two began fighting. In connection with this incident, Wheeler was issued a conduct report for fighting. Captain Radtke presided over the disciplinary hearing, found Wheeler guilty of fighting, and sentenced him to 180 days of disciplinary segregation.
The plaintiff alleges that, in June of 2012, the Gangster Disciples again offered him a high-ranking position within their organization, but he repeatedly declined to accept the position. Compl. ¶¶ 23-24. The plaintiff alleges that the gang was offended by his refusal to accept the position, and that therefore they decided to “eradicate” or “get rid of” him. Id. ¶ 24. The plaintiff alleges that “eradicating” means employing “headbusters” to spread “disinformation” about him to prison administrators. Id. ¶ 26. The plaintiff alleges that the headbusters were several inmates who worked in the prison kitchen, including an inmate named Willie G. Steward. Id. ¶ 27. According to the plaintiff, the three confidential informants whose statements were used to convict him of being a leader of the Gangster Disciples were headbusters. Id. ¶ 43. Thus, alleges the plaintiff, he was convicted on the basis of false testimony. The plaintiff alleges that Captain Radtke had reason to know that he had been targeted for eradication and that the testimony of the confidential witnesses was false.
The plaintiff also alleges that, on January 8, 2013, he filed a grievance through the prison grievance system alleging that the prison was failing to protect him from the Gangster Disciples’ plot to eradicate him. Compl. ¶ 40. He further alleges that Radtke’s issuing the conduct report charging him with being a leader of the Gangster Disciples on January 14, 2013, was motivated by a desire to retaliate against him for filing this grievance. Compl. ¶¶ 43, 47.
After Wheeler was convicted of being a leader of the Gangster Disciples, he attempted to identify the confidential informants who had testified against him. Compl. ¶¶ 53-54. Wheeler alleges that his plan was to “identify and discredit” these witnesses and then use the information he obtained to petition the warden for relief from his disciplinary sanction. Id. ¶ 54. In fact, however, Wheeler sent letters to friends, family, and other inmates in which he encouraged them to locate certain individuals who Wheeler suspected of being the confidential informants and coerce them into recanting their testimony. In the letters, Wheeler refers to the suspected informants as “snitches, ” “cowards, ” fag ass niggas, ” “rats, ” “fuck niggas, ” and “bitch niggas.” See Ex. 5. The letters reveal that Wheeler thought that one of the informants had been released on probation or parole, and he encouraged the letter recipients to report that this person had committed a robbery. Id. He also encouraged the letter recipients to report parole violations to the perceived informant’s parole officer. Id. Wheeler also encouraged the letter recipients to find out if the informant had a job, and, if he did, to make repeated phone calls to his place of employment in an effort to get him fired. Id. The letters also make clear that Wheeler’s goal was to have the confidential witnesses recant their testimony. In one letter, Wheeler writes that “[t]he only way to beat a CI statement is recantation, ” and that “[w]ithout that recantation then we stuck here.” ECF No. 39-2 at p. 16.
Because prison administrators were monitoring Wheeler’s mail, they learned about his attempts to identify the confidential witnesses and coerce them into recanting. On July 22, 2014, Radtke confronted Wheeler about the letters and warned him that if he did not stop trying to identify the confidential witnesses, she would “write [him up] for everything under the sun.” Compl. ¶ 62. Wheeler alleges that the interview ended with Radtke threatening to “pursue prison discipline against Wheeler” were he to prosecute any grievance arising out of the interview or any grievance alleging “erroneous discipline.” Id. ¶ 63. Wheeler alleges that, on the same day of the interview, he filed two grievances against Radtke. Id. ¶ 64.
On August 8, 2014, Radtke issued Wheeler the second conduct report at issue in this suit, which is #2481117. Compl. ¶ 65; see also Ex. 5. This conduct report charged Wheeler with “threats” and other disciplinary violations in connection with the letters he wrote to his friends, family, and other inmates. See Ex. 5. On August 28, 2014, Wheeler was found guilty of violating a ...