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Larry v. Meisner

United States District Court, E.D. Wisconsin

September 27, 2016

ORLANDO LARRY, Plaintiff,
v.
MICHAEL MEISNER, et al., Defendants.

          DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The plaintiff, who is representing himself, is a former Wisconsin state prisoner, who at the relevant time was incarcerated at Columbia Correctional Institution. He currently is incarcerated at Gilmer Federal Correctional Institution. Dkt. No. 1 at 1. He filed this lawsuit under 42 U.S.C. §1983, Dkt. No. 1, along with a motion for leave to proceed without prepayment of the filing fee, Dkt. No. 2. This order resolves that request and screens the plaintiff's complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On August 23, 2016, U.S. Magistrate Judge David E. Jones (the assigned judge at that time) ordered the plaintiff to pay an initial partial filing fee of $27.47. Dkt. No. 5. On September 2, 2016, the plaintiff filed his refusal to consent to jurisdiction by a magistrate judge, so the clerk's office reassigned the case to this court. The plaintiff paid the initial partial filing fee on September 19, 2016. Accordingly, the court will grant the plaintiff's motion. The court will require the plaintiff to pay the remainder of the filing fee over time as set forth at the end of this decision.

         II. Screening the Plaintiff's Complaint

         The law 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 plaintiff raises 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) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). 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) (internal citations omitted).

         To state a cognizable claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need 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 Atl. 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 follow the principles set forth in Twombly. First, they must “identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id. Second, if there are well-pleaded factual allegations, courts 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 the defendants: 1) deprived him of a right secured by the Constitution or laws of the United States; and 2) acted 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 is obliged to give the plaintiff's pro se allegations, “however inartfully pleaded, ” a liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. The Plaintiff's Allegations

         The plaintiff alleges that on August 2, 2011, during the month of Ramadan, Officer Goldsmith[1] “summonsed his supervisors” to place him in segregation. Dkt. No. 1 at 3. The plaintiff states that Goldsmith had him placed in segregation “for praying under false pretenses that he ordered [the plaintiff] to stop praying and [the plaintiff] would not.”[2] Id. Lt. Kevin Boodry, accompanied by several correctional officers, placed the plaintiff in mechanical restraints and escorted him to segregation unit DS1, where he was strip searched and placed into a cell. Id.

         Goldsmith wrote a major conduct report, stating that the plaintiff disobeyed an order, was disruptive, and engaged in group resistance and petitioning. Id. at 3, 6. The plaintiff states he was informed of his hearing rights and given a copy of the conduct report, although he does not state who informed him or provided him with a copy. Id. at 6. The plaintiff states he requested several witnesses to be present (he does not state to whom he made the request or whether his request was granted), and asked Security Director Janel Nickels “to review [his] placement in DS1 and to provide in camera inspection for evidence at [his] disciplinary hearing.”[3] Id. at 6, 4. Nichols did “accommodate” the plaintiff's request. Id. at 4.

         Captain Donald Morgan found the plaintiff guilty at the disciplinary hearing and sentenced him to sixty days in segregation. Id. Correctional Officer Grant (who is not named as a defendant) escorted the plaintiff to segregation unit DS2 and placed the plaintiff in a one-man cell. Id. Grant informed the plaintiff that he would sleep on the floor[4] by the toilet because the cell was already occupied. Id. The plaintiff explained that he couldn't sleep on the floor because he has back problems, and he expressed concern that the cell was too small to house him, another inmate, and all of their possessions. Id. He asked Grant if he could go back to DS1. Id. Grant agreed, but warned the plaintiff that he might receive a conduct report. Id.

         The plaintiff then received another major conduct report. Id. According to the plaintiff, the report falsely accused him of refusing to let Grant take the cuffs off and refusing to stay in DS2. Id. At the disciplinary hearing, Lieutenant Thomas Schoenburg found the plaintiff guilty and sentenced him to 120 days in segregation. Id. at 5. The plaintiff was escorted back to unit DS2 and forced to sleep on the floor, which the plaintiff states aggravated his injured back.[5] Id.

         The plaintiff states that while he was in segregation he was not allowed to attend Friday Jumuah Services, he could not make wudu for purification, he was not allowed to participate in the Eid Al Fitr feast, the Eid ul Adha feast, or group prayers, and he was fed bagged meals once per day during the entire month of Ramadan. Id. The plaintiff does not clarify who denied him the opportunity to participate in these activities. ...


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