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Jacobs v. Gossage

United States District Court, E.D. Wisconsin

June 8, 2016

AARON L. JACOBS, JR., Plaintiff,
v.
SHERIFF GOSSAGE, DEPUTY T. DELAIN, CAPTAIN L. MALCOMSON, CO SICKLE, KIM WOULF, CINDY LINK, and KAREN ELLMAN, Defendants.

         DECISION 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

          HON. PAMELA PEPPER United States District Judge

         The 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 injunction.

         I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

         The 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.

         On 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.

         II. SCREENING OF THE PLAINTIFF’S COMPLAINT

         The law 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. §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 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 (citation omitted).

         In 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.

         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. 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)).

         A. Allegations in the Complaint

         The 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.

         The 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."[1] 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, ...

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