United States District Court, E.D. Wisconsin
DECISION AND ORDER SCREENING THE PLAINTIFF'S
AMENDED COMPLAINT (DKT. NO. 10)
PAMELA PEPPER United States District Judge
plaintiff, who is representing himself, is a former Wisconsin
state prisoner. During the events described in the complaint
and amended complaint, he was incarcerated at Columbia
Correctional Institution. On September 27, 2016, the court
screened the plaintiff's complaint and gave him the
opportunity to file an amended complaint. Dkt. No. 8. The
plaintiff did so on November 3, 2016. Dkt. No. 10. The court
will screen the amended complaint pursuant to 28 U.S.C.
Screening the Plaintiff's Amended Complaint
requires the court to screen complaints, including amended
complaints, filed 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).
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 states that on August 1, 2011, he asked John Doe #3
if Ramadan meals could be served later to prevent breaking
the fast too soon. Dkt. No. 10 ¶15. John Doe #3 said no,
because the kitchen was on a set schedule. Id. at
¶16. He also informed the plaintiff that the plaintiff
could not pray. Id. at ¶17. The plaintiff
explained to John Doe #3 that John Doe #3 was not supposed to
interfere with their prayers, and then the plaintiff returned
to his bunk row. Id. at ¶18. The plaintiff
states that he later received cold stares from John Does #3
and #4. Id. at ¶19.
next day, John Doe #4 instructed another inmate to stop
praying. Id. at ¶25. The plaintiff intervened,
and informed John Doe #4 that he and the other inmate were
Muslim, that it was the month of Ramadan, and that it was the
time for prayer. Id. at ¶26. John Doe #4
responded that there would be no praying, and he told the
plaintiff that the plaintiff and the other inmate would
receive a conduct report. Id. at ¶27.
Doe #4 walked away, and the plaintiff spread out his prayer
rug in his bunk row and began to pray. Id. at
¶29. When he was done, he joined another inmate in an
effort to explain the requirement for prayer to John Doe #4.
Id. at ¶31. John Doe #4 was hostile and adamant
that they could not pray, so the plaintiff returned to his
bunk row. Id. at ¶32.
thereafter, defendant Kevin Boodry entered the barracks with
several other correctional guards, briefly spoke to John Doe
#4, then asked the plaintiff to step into the hall.
Id. at ¶34. Boodry placed the plaintiff in
mechanical restraints and escorted him to the DS1 segregation
housing unit. Id. at ¶35. After asking the
plaintiff about what had happened, Boodry ordered one of the
correctional officers to strip-search the plaintiff, then
placed the plaintiff in one of the segregation cells.
Id. at ¶39. Boodry told the plaintiff that
Boodry would return after his investigation. Id. at
later asked the plaintiff if the plaintiff had anything to
add to his account of the events; the plaintiff said that he
did not. Id. at ¶42, 43. Boodry recorded the
incident in a notice of placement in temporary lockup, a copy
of which he provided to the plaintiff; the plaintiff states
that Boodry did not include the plaintiff's version of
the incident and did not inform the plaintiff of his rights.
Id. at ¶44, 45. (It is not clear to the court
to which “rights” the plaintiff refers.)
John Doe #4 wrote the plaintiff a major conduct report, which
indicated that the plaintiff disobeyed orders, was disorderly
and disruptive, and engaged in group resistance and
petitioning. Id. at ¶46. The plaintiff states
that the chargers were false. Id.
plaintiff indicates that staff advocate and defendant Mary
Leiser informed him of his hearing rights and provided him
with a copy of the conduct report. Id. at ¶49.
The plaintiff chose to have a formal disciplinary hearing,
and requested that John Doe #4, two inmates, and the chaplain
be available as witnesses. Id. at ¶60. The
plaintiff also asked that he be permitted to present video
footage showing that John Doe #4 had asked another inmate,
and not him, to stop praying. Id. at ¶61. The
plaintiff separately wrote to defendant Janel Nickels and
asked her to preserve the video footage, but she did not
respond to his request. Id. at ¶62, 63.
to the hearing, defendant Donald Morgan wrote the plaintiff
and denied his request to have John Doe #4 and the chaplain
present at the hearing. Id. at ¶64, 65. The
plaintiff eventually appeared before the disciplinary hearing
committee. Id. at ¶66. The plaintiff states
that Morgan “suppressed” the requested video
footage, and that John Doe #2 suppressed all mention of video
evidence from the record. Id. at ¶67, 69. (The
court is not clear what the plaintiff means by
“suppressed.”) Morgan found the plaintiff guilty
of disobeying orders, dismissed the remaining charges, and
sentenced the plaintiff to a disposition of 60 days in
segregation. Id. at ¶68. The plaintiff timely
appealed the decision. Id. at ¶82. John Doe #1
denied the appeal. Id. at ¶101.
conclusion of the disciplinary hearing, Morgan ordered John
Doe #5 to escort the plaintiff from segregation housing unit
DS1 to segregation housing unit DS2 for good conduct while on
temporary lock-up status pending the disciplinary hearing.
Id. at ¶70. When he arrived at segregation
housing unit DS2, John Doe #6 assigned the plaintiff to an