United States District Court, E.D. Wisconsin
AARON L. JACOBS, JR., Plaintiff,
SHERIFF GOSSAGE, DEPUTY T. DELAIN, CAPTAIN L. MALCOMSON, CO SICKLE, KIM WOULF, CINDY LINK, and KAREN ELLMAN, Defendants.
AND ORDER DENYING PLAINTIFF’S MOTION FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION (DKT. NO. 2),
GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS (DKT. NO. 6), SCREENING PLAINTIFF’S
COMPLAINT (DKT. NO. 1), AND DIRECTING PLAINTIFF TO FILE
AMENDED COMPLAINT BY JULY 8, 2016
PAMELA PEPPER United States District Judge
pro se plaintiff, Aaron L. Jacobs, Jr., is confined
at the Brown County Jail. He filed a complaint under 42
U.S.C. §1983, alleging that the defendants violated his
constitutional rights. The plaintiff also filed a motion for
temporary restraining order and preliminary injunction. Dkt.
No. 2. In this order, the court grants the plaintiff’s
motion to proceed in forma pauperis, screens the
plaintiff’s complaint, and denies the plaintiff’s
motion for temporary restraining order and preliminary
MOTION FOR LEAVE TO PROCEED IN FORMA
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. §1915. That law allows a court to give 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 $350.00 filing fee over time
through deductions from his prisoner account. Id.
March 16, 2016, the court issued an order requiring the
plaintiff to pay an initial partial filing fee of $29.56.
Dkt. No. 12. The plaintiff paid that fee on April 5, 2016.
Accordingly, the court will grant the plaintiff’s
motion for leave to proceed without pre-paying the filing fee
and allow the plaintiff to pay the balance of the $350.00
filing fee over time from his inmate account, as described at
the end of this order.
SCREENING OF THE PLAINTIFF’S
allows a court 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 a part of it, 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.
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)
state a cognizable claim under the federal notice pleading
system, the plaintiff shall provide a "short and plain
statement of the claim showing that [he] is entitled to
relief[.]" Fed.R.Civ.P. 8(a)(2). The plaintiff need not
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)). 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
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly. First,
the court should "identify 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 then must "assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief." Id.
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. 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)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). The court must 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)).
Allegations in the Complaint
plaintiff is confined at the Brown County Jail. Dkt. No. 1 at
1. The defendants are: Sheriff J. Gossage; Deputy T. Delain;
Captain L. Malcomson; CO Sickle; Kim Woulf; Cindy Link; and
Karen Ellman. Id.
plaintiff challenges the Brown County Jail’s policy
which provides that, "if an inmate is released prior to
the completion of his/her punitive sentence and later
re-incarcerated at the Brown County Jail, he/she will serve
the remainder of the disciplinary sentence." Dkt. No. 1
at 2-3. Going back to May 31, 2011, the plaintiff cites to
nine separate instances in which, upon being booked into the
Jail, staff placed him in "punitive segregation and loss
of recreation all without committing Jail rule infractions
nor afforded any due process." Dkt. No. 1 at 3. According
to the plaintiff, the segregation placements all were based
on punitive sanctions "from a previous stay."
Id. The plaintiff describes punitive segregation and
loss of recreation as follows:
Punitive Segregation Unit in Fox Pod is utilized for Inmates
who commit jail rule violations and are being sanctioned
therein for such. If an inmate is sanctioned to punitive
segregation said inmate is segregated from general-population
and highly restricted in jail privileges and activities such
as: He/she is placed on 23 hour lock down, and restricted
from visits, phone calls, commissary, newspapers,
photographs, magazines, sheets, razors, nail clippers,
clocks, mops, board games, cards, law library access, TV,