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Moseby v. Smith

United States District Court, E.D. Wisconsin

June 1, 2016



          HON. PAMELA PEPPER, United States District Judge.

         The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C. §1983, alleging that the defendants at the Oshkosh Correctional Institution and the Columbia Correctional Institution violated his civil rights. This order resolves the plaintiff’s motion for leave to proceed in forma pauperis and screens the plaintiff’s complaint.


         The Prison Litigation Reform Act (“PLRA”) applies to this action because the plaintiff filed his complaint while incarcerated. 28 U.S.C. §1915. The PLRA allows a court to grant 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 October 5, 2015, the court assessed an initial partial filing fee of $137.64. Dkt. No. 6. The plaintiff paid that amount on November 3, 2015. Accordingly, the court will grant the plaintiff’s motion for leave to proceed in forma pauperis and will allow the plaintiff to pay the balance of the $350 filing fee over time from his prisoner account, as described at the end of this order.


         A. Standard for Screening Complaints

         The PLRA requires federal courts 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 may dismiss an action or portion thereof if the claims alleged are “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B).

         To state a claim under the federal notice pleading system, plaintiffs must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific facts, and need only provide “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)). “Labels and conclusions” or a “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).

         The factual content of the complaint must allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The factual allegations must “raise a right to relief above the speculative level, ” and when accepted as true, must state a claim that is “plausible on its face.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.

         Federal courts follow the two-step analysis set forth in Twombly to determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First, the court determines whether the plaintiff’s legal conclusions are supported by factual allegations. Id. Legal conclusions not supported by facts “are not entitled to the assumption of truth.” Id. Second, the court determines whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” Id. The court gives 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)).

         In the context of a §1983 claim, the 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 the 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). A suit seeking monetary damages under §1983 must further allege that the defendants were personally involved in the constitutional deprivation. Matz v. Klotka, 769 F.3d 517, 527 (7th Cir. 2014).

         B. Facts Alleged in the Proposed Complaint

         In October 2012, the plaintiff was an inmate at the Oshkosh Correctional Institution (“OCI”). Dkt. No. 1 at ¶ 8. OCI Lieutenant Eric Norman gave the plaintiff a conduct report, because Norman received information that the plaintiff’s fiancée, Marie Enzell, planned to smuggle drugs into the prison during her October 13, 2012 visit with plaintiff. Id. at ¶¶ 8-11. On October 13, 2012, Norman and OCI Lieutenant R. Smith[1] removed the plaintiff from general population and placed him in segregation. Id. at ¶ 12. The officers’ investigation, which included reviewing the plaintiff’s phone calls, had revealed that the plaintiff’s fiancée would be visiting the plaintiff on October 13, 2012. Id. at ¶ 11. Enzell did, in fact, arrive at OCI on that day; OCI staff intercepted her in the lobby and determined that she possessed marijuana and K2. Id. at ¶ 13.

         Norman, along with OCI Lieutenant Tony (who is not a defendant in this case), informed the plaintiff that they had detained his fiancée because they found her with drugs. Id. at ¶ 13. The plaintiff alleges that Norman and Lieutenant Smith “used coercive threats of prolonged assignment in the Segregation building at [OCI], prosecution . . . in the Criminal Court of Enzell and Moseby and other tactics to convince Moseby to cooperate” in an investigation of drug use and dealing in OCI. Id. at ¶ 14. The plaintiff agreed, and he provided the officers with names of other inmates who were involved in the drug trafficking. Id. at ¶ 15. Norman and Lieutenant Smith did not believe that the plaintiff had been sufficiently forthcoming with the information he provided. Id. at ¶¶ 15-16. The plaintiff alleges that as a result, the officers informed other inmates in segregation that the plaintiff had “cooperated” with prison staff, thereby identifying him as a “snitch.” Id.

         Shortly thereafter, other inmates in segregation began threatening the plaintiff with physical harm. Id. The plaintiff wrote to OCI Warden Judy Smith, complaining about Norman and Lieutenant Smith and the subsequent threats from other segregation inmates. Id. at ¶ 19. Warden Smith responded that the plaintiff should address the issue with the Disciplinary Hearing Committee. Id.

         Several days after Norman and Lieutenant Smith decided that the plaintiff wasn’t being forthcoming, the plaintiff was visited in his cell by a social worker. Id. at ¶ 38. The social worker told him that his custody level was going to be increased from medium to maximum. Id. at ¶ 39. On November 16, 2012, the plaintiff appeared before the Program Review Committee (“PRC”) for the re-classification hearing. Id. at ¶ 40. Lieutenant Smith was one of the committee members. Id. The plaintiff alleges that Smith gave the PRC coordinator false information about the plaintiff’s drug trafficking at two different institutions and his past conduct reports. Id. At the conclusion of the hearing, the PRC decided that the plaintiff’s classification should be increased from medium to maximum, and that he should be transferred to Columbia Correctional Institution (“CCI”). Id. at ¶ 45.

         The plaintiff alleges that the decision to transfer him to CCI was problematic. He explains that in 2007 (some five years before the events described above), while he was incarcerated at CCI, he was the target of a gang assault, which “resulted in a physical altercation with Michael Alexander, another prisoner, who tried to recruit Moseby, then 22 years old, into a prison gang.” Id. at ¶ 42. At that time, the Department of Corrections (“DOC”) issued a Special Placement Need (“SPN”), requiring the plaintiff to be kept separate from Alexander, and the DOC transferred the plaintiff to Waupun Correctional Institution. Id. at ¶ 43. The PRC at CCI issued its decision on June 21, 2007, which included the statement that the plaintiff “ha[d] some issues with other inmates here at CCI (would not elaborate).” Id. at ¶ 41.

         So-despite the 2007 SPN requiring the plaintiff to be separated from Alexander, the OSCI PRC recommended increasing the plaintiff’s custody status from medium to maximum, with a transfer to CCI. Id. at ¶ 45. The PRC assured the plaintiff that Alexander was no longer incarcerated at CCI. Id.

         The plaintiff remained in segregation at OCI from his placement there in October 2012 until February 2013. Id. at ¶ 23. The plaintiff alleges that the segregation unit had insufficient insulation and ventilation, and that the inmates housed there were subjected to “extreme fluctuating temperatures.” Id. at ¶ 12. The plaintiff also alleges that there were “extremely cold temperatures” in the segregation unit. Id. at ¶ 20. In January 2013, another inmate plugged up the toilet in that inmate’s cell, which caused water to overflow the toilet, run out of the cell, and flow into the corridor. Id. at ¶¶ 25-26. The toilet water flowed into the plaintiff’s cell; his canvas shoes, socks and pants hems became wet as a result. Id. at ¶ 26. When the plaintiff requested dry clothing, dry shoes, and cleaning materials to sanitize his cell, OCI Correctional Officers Kraft and Borkowski (who are not defendants in this case) denied his request. Id. at ¶ 27. The contaminated water remained in the plaintiff’s cell for approximately five hours; even then, third-shift staff put blankets and towels in front of the plaintiff’s door to keep water from coming back into the cell. Id. at ¶ 29. Two weeks later, the plaintiff told the Health Services Unit staff that he had developed a fungus under the toenail of his right big toe, which discolored his toenail and caused him pain and irritation for some three months. Id. at ¶ 34.

         On January 1, 2013, the plaintiff filed an offender complaint regarding the conditions of his segregation cell. Id. at ¶ 28. OCI complaint examiner Theresa Murphy (who is not a defendant in this case) recommended dismissing the complaint (finding that there wasn’t much water and that it was just water, not contaminated water). Id. at ¶ 31. Warden Smith dismissed the complaint eight days later, without conducting an “independent investigation.” Id. at ¶ 32.

         While he was in the segregation unit at OCI, the plaintiff also sent an “interview information request” to Warden Smith, alleging that the temperature in the segregation unit was “icy” and cold. Id. at ¶ 35. Warden Smith instructed the plaintiff to send the request to the segregation supervisor, but did nothing herself. Id. The plaintiff alleges that the cold temperatures “often caused numbing, pain and a tingling sensation of [his] fingers and toes, and caused sleeplessness for days at a time.” Id. at ¶ 36.

         On February 7, 2013, the DOC transferred the plaintiff to CCI. Id. at ¶ 50. Although he’d been assured that Michael Alexander was no longer housed at CCI, the plaintiff saw inmate Alexander and “a number of other prisoners from Alexander’s clique, ” and the “animosity” from 2007 resumed; the plaintiff alleges that it was fueled by rumors that the plaintiff had been an informant at OCI. Id. Over the next nine months, the plaintiff wrote to CCI Warden Michael Dittman’s office, CCI Security Director Weber, CCI Captain Don Morgan, CCI Captain Keller, and CCI Lieutenant Mike Morrison, notifying them that in 2007, during his last stint at CCI, he’d been in a fight with Alexander. Id. at ¶ 51. The plaintiff told these individuals that Alexander “was affiliated with” a gang that had tried to recruit him, and that Leshawn Benson, who was considered to be one of the ...

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