Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Larry v. Meisner

United States District Court, E.D. Wisconsin

November 23, 2016

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

          DECISION AND ORDER SCREENING THE PLAINTIFF'S AMENDED COMPLAINT (DKT. NO. 10)

          HON. PAMELA PEPPER United States District Judge

         The 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. §1915A.

         I. Screening the Plaintiff's Amended Complaint

         The law 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).

         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 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.

         The 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.

         John 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.

         Shortly 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 ¶40.

         Boodry 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.)

         Later, 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.

         The 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.

         Prior 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.

         At the 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 ΒΆ70. When he arrived at segregation housing unit DS2, John Doe #6 assigned the plaintiff to an already ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.