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Biese v. Foster

United States District Court, E.D. Wisconsin

April 28, 2016

BENJAMIN JOHN BIESE, Plaintiff,
v.
BRIAN FOSTER, et al., Defendants.

SCREENING ORDER

DAVID E. JONES United States Magistrate Judge

Plaintiff Benjamin John Biese, who is representing himself, has filed a complaint alleging that his civil rights were violated while he was incarcerated at Green Bay Correctional Institution. This matter is before the Court on Mr. Biese’s motion to proceed without prepaying the $350 filing fee (ECF No. 2), his motion to seal the complaint (ECF No. 10), and for screening of his complaint (ECF No. 1).

Motion to Proceed without Prepaying the Filing Fee

The Prison Litigation Reform Act gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. §1915. One of those requirements is that the prisoner pay an initial partial filing fee. On March 24, 2016, the Court assessed an initial partial filing fee of $0.27. (ECF No. 5.) Mr. Biese paid that fee on April 21, 2016. Accordingly, Mr. Biese may proceed with his lawsuit without prepaying the $350 filing fee. He is ordered to pay the remainder of the filing fee over time as set forth at the end of this decision.

Motion to Seal the Complaint

On April 21, 2016, Mr. Biese filed a motion asking the Court to seal the complaint. (ECF No. 10.) He explains that “[t]he complaint discloses details of sexual abuse/assault” and that “disclosure would not be in the interest of justice.”

General Local Rule 79(d) requires a party to provide “sufficient facts demonstrating good cause for withholding [a document] from the public record.” Mr. Biese fails to do this. Perhaps, because the allegations in his complaint are of a sensitive and personal nature, Mr. Biese does not want the subject matter made public. However, as noted by the Court of Appeals for the Seventh Circuit, “Many a litigant would prefer that the subject of the case . . . be kept from the curious . . ., but the tradition that litigation is open to the public is very long standing.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000) (citations omitted). Judicial proceedings are public, rather than private, affairs, and when people call on the courts, they must accept the openness that goes with those proceedings. See Id. at 568; see, e.g., United States v. Foster, 564 F.3d 852, 854-55 (7th Cir. 2009) (emphasizing that a preference for secrecy or to avoid embarrassment are not sufficient bases for sealing filings).

While the Court can understand that Mr. Biese may prefer privacy, he has not provided a sufficient basis under the law for withholding his complaint from the public.

Screening Mr. Biese’s 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).

To state a cognizable claim under the federal notice pleading system, a 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 a plaintiff to plead specific facts and her 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, courts 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) she was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon her 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 a 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)).

Mr. Biese alleges that, on October 25, 2015, he was sexually assaulted by two inmates. The next day, he reported the assault to a non-defendant doctor, who notified defendant Captain Pusich. An investigation was initiated pursuant to the Prison Rape Elimination Act (PREA); Mr. Pusich led the investigation. Mr. Biese states that defendant Brian Foster supervised Mr. Pusich ...


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