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Tatum v. Wall

United States District Court, E.D. Wisconsin

May 5, 2016

ROBERT L. TATUM, on behalf of all similarly situated Wisconsin Department of Corrections inmates, Plaintiffs,
v.
EDWARD WALL, GARY BOUGHTON, MARK KARTMAN, DAVID GARDNER, DARYL FLANNERY, DANE ESSER, LARRY PRIMMER, LEBBEUS BROWN, JOHN SHARPE, JONI SHANNON-SHARPE, DANIEL LEFFLER, CRAIG TOM, JOSEPH DREZEN, JOSEPH CICHANOWICZ, MATTHEW SCULLION, ROBERT BOOHER, JENNIFER SICKINGER, MICHAEL SHERMAN T. GOVIER, ANDREW JONES, PAUL KIRSTEN, COLTON FIELDS, JOSHUA CAMPEAU, CODY KEEHN, CO KOENIG, CO LARSEN, CO OSTROVSKI, CO HEHNE, WILLIAM BROWN, ELLEN RAY, DR. TRACY JOHNSON, DR. TORRIA VAN BUREN, VICTORIA SEBRANIK JIM SCHWOCHERT, KAREN GOURLIE, WELCOME ROSE, CHARLES FACKTOR, CINDY O’DONNELL, DIEDRE MORGAN, UNKNOWN CO, and UNKNOWN DAI OFFICIAL, Defendants.

SCREENING ORDER

HON. RUDOLPH T. RANDA U.S. District Judge

The pro se plaintiff is a Wisconsin state prisoner. He filed this class action lawsuit under 42 U.S.C. § 1983. This matter comes before the court on Tatum’s petition to proceed in forma pauperis. He has been assessed and paid an initial partial filing fee of $.12.

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).

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. 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 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)).

Complaint Allegations

Tatum was incarcerated at the Wisconsin Secure Program Facility at all times relevant. He brings this case as a class action on behalf of all similarly situated Wisconsin Department of Corrections inmates against 41 defendants. Tatum alleges that policies and customs of a “Blue code of Silence” have violated the plaintiffs’ rights under federal and state law. (Dkt. No. 1 at 6.)

According to Tatum, individually and as a part of the policy of the Blue Code of Silence, he has been subjected to multiple violations of his rights. The Blue Code of Silence allegedly uses various tactics to reinforce its policies, such as ensuring that the Inmate Complaint Review System is a sham, obstructing the plaintiffs’ access to attorneys and to the courts, and lying in official reports. The perpetuation of the Blue Code of Silence has allegedly resulted in constitutional violations, such as: denial of due process; denial of access to the courts; excessive force, unnecessary strip searches and sexual assault; retaliation; unlawful conditions of confinement in observation status; forced medical intervention and force-feeding; unlawful in-cell cameras; assault/battery/distress; unlawful conditions of confinement related to unfair and unnecessary security precautions; and denial of equal protection.

It appears that the plaintiff attempts to join all 41 defendants and multiple claims together in one action under the Wisconsin Department of Corrections’ Blue Code of Silence because all defendants allegedly acted pursuant to that policy. Specifically, he alleges:

Def. Boughton operates WSPF under a custom or written policy known as the “Blue Code” or “Code of Silence” (COS), which is a prevalent and illegal system operating WI-DOC wide under def. Wall wherein staff will and must cover-up and lie for each other and against an inmate or inmates, or otherwise act (harass or retaliate) against an inmate or inmates to assist another staff members efforts against them, regardless of the illegality of those actions and esp. if the “target” inmate or inmates file lawsuits, report staff misconduct, or is personally disliked by 1 or more staff for any reason. All ranks, up to Boughton at WSPF level and Wall WI-DOC (Madison – Central Ofc)-side, are COS facilitators and participants.
The primary goals of the COS “custom” is to cover-up and prevent prosecution of staff misconduct and establish an “us v. them” team mentality against inmates by “teaming-up” v. plaintiff even pursuant to illegal conduct. These goals are achieved by lying in official records and reports, intentionally mishandling and refusing to process staff misconduct ICIs, refusals to discipline even overt misconduct of staff reported, and retaliating against and harassing plaintiffs who report or file lawsuits.
The environment created by the COS “custom” in allowing and covering up staff misconduct is a potential and actual danger to plaintiffs’ health and safety (as even highly illegal acts may be perpetrated w/o repercussions), demoralizes Plaintiffs in having no recourse for inflicted wrongs – detrimental to mental health and effective rehabilitation, and puts plaintiffs at a high risk for self-harm. The COS custom can be reasonably ...

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