United States District Court, E.D. Wisconsin
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
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Motion for Leave to Proceed without Prepayment of 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.
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
Screening the Plaintiff's Complaint
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.
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).
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
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.
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)).
The Plaintiff's Allegations
plaintiff alleges that on August 2, 2011, during the month of
Ramadan, Officer Goldsmith “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.” 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.
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.” Id. at
6, 4. Nichols did “accommodate” the
plaintiff's request. Id. at 4.
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 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.
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. Id.
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. ...