United States District Court, E.D. Wisconsin
DECISION AND ORDER SCREENING COMPLAINT AND DISMISSING
PAMELA PEPPER, United States District Judge.
plaintiff, Ronnie Frank Nicholson, Jr., a state prisoner, is
representing himself. He filed a civil complaint alleging
that the defendants denied him access to the courts when they
seized his legal documents from another inmate. Dkt. No. 1.
The plaintiff has paid the full filing fee.
requires the 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 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.
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 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)). A complaint that offers “labels
and conclusions, ” however, 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 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.
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)).
The Allegations in the Complaint
plaintiff alleges that, at some time in the past, his skin
was disfigured when he was sprayed with chemical agents and
then not allowed to shower for three days. Dkt. No. 1 at 2.
While the plaintiff was an inmate at Columbia Correctional
Institution (Columbia), he sought out the assistance of a
jailhouse lawyer, Benjamin Biese, to help him bring a
deliberate indifference claim against prison officials. The
plaintiff gave Biese all of his legal documents so Biese
could become familiar with the facts of his case, conduct
research to determine the plaintiff’s legal claims, and
prepare a complaint. Id. Before he was able to
prepare the plaintiff’s complaint, however, Biese was
transferred from Columbia to Redgranite Correctional
Institution. Id. The plaintiff was not able to
retrieve his documents from Biese before his transfer; Biese
had approximately 200 pages of the plaintiff’s legal
documents. Id. at 2-3.
plaintiff corresponded with Biese for seven months, and
eventually became dissatisfied with the assistance Biese was
providing. At that time, the plaintiff wrote to Biese and
asked him to return the plaintiff’s legal documents.
Initially, Biese did not respond to the plaintiff’s
request, but Biese eventually told the plaintiff that he
would return his documents via the United States Postal
Service. The plaintiff continued to write and implore Biese
to return his documents, but he did not get them back. The
plaintiff eventually learned that there were other inmates
who had been relying on Biese who did not receive any
results. Id. at 3.
the plaintiff spoke to his housing unit social worker at
Columbia about the situation, and she told the plaintiff she
would see what could be done about the situation. The social
worker told the plaintiff that the prison officials at
Redgranite intended to look into the matter and would report
their findings back to her. Id. The social worker
was able to obtain legal files and documents for two other
inmates, but she provided the plaintiff with only twenty
pages of his legal documents. Id. at 4.
plaintiff again wrote to Biese and requested that he return
all of the plaintiff’s legal documents, but the
plaintiff never heard back from Biese. In 2011, the plaintiff
was transferred to Redgranite, but Biese already had been
transferred to Waupun Correctional Institution. Id.
about April 19, 2014, another inmate named Randy Mataya, who
previously had been at Columbia with the plaintiff and Biese,
arrived at Redgranite. Mataya asked the plaintiff if he had
been able to get anywhere with his lawsuit after he got his
file back from Biese. The plaintiff told Mataya that
“Biese had not returned [the plaintiff’s] legal
files and as a result he was unable to pursue his
told the plaintiff that he had just been at Waupun with
Biese, and that Biese said the plaintiff had the
“police” at Redgranite search his room and
property for the plaintiff’s legal documents when all
Biese was trying to do was help the plaintiff. Id.
Mataya also told the plaintiff that Biese said that defendant
Eckstein (then deputy warden at Redgranite) and a
“white shirt” had taken three stacks of the