United States District Court, W.D. Wisconsin
JAMES A. LEWIS, Plaintiff,
CHAD HENNEMAN, LORIE IVERSON, LAURIE NEUROTH, ANTHONY BROADBENT, ELLEN RAY, GARY BOUGHTON, MR. KARTMAN, MS. SEBRANEK, WILLIAM BROWN, JOHN DOE 1, and JOHN DOE 2, Defendants.
OPINION & ORDER
D. PETERSON, District Judge
James A. Lewis, a prisoner currently incarcerated at the
Wisconsin Secure Program Facility (WSPF), brings this lawsuit
alleging that WSPF officials harassed and disciplined Lewis
in retaliation for his complaining about sexual harassment by
one of the defendants. Lewis has made an initial partial
payment of the filing fee for these lawsuits, as previously
directed by the court.
next step in the case is to screen the complaint. In doing
so, I must dismiss any portion that is legally frivolous,
malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by
law cannot be sued for money damages. 28 U.S.C. §§
1915 and 1915A. Because Lewis is a pro se litigant, I must
read his allegations generously. Haines v. Kerner,
404 U.S. 519, 521 (1972) (per curiam). After reviewing the
complaint, Dkt. 1, I will grant him leave to proceed on
claims under the First Amendment and Fourteenth Amendment
against defendants Chad Henneman, Lorie Iverson, and Laurie
Neuroth. I will give him an opportunity to file an amended
complaint stating claims against the remaining defendants.
the following allegations from Lewis's complaint. Dkt. 1.
works in the WSPF kitchen. One day, defendant Chad Henneman
said “hmm . . . what an interesting view” while
looking at Lewis, who was bent over, putting food in the
kitchen cooler. Dkt. 1, at 2. Lewis “heatedly informed
Henneman that he was not gay and did not appreciate
Henneman's remarks.” Id.
reported the harassment to defendants Lorie Iverson, Laurie
Neuroth, Anthony Broadbent, William Brown, Ellen Ray, Ms.
Sebranek, Gary Boughton, and the Victim Service Coordinator,
John Doe 2, by filing inmate grievances and other forms of
communication. They all responded to Lewis, although not as
quickly or in the manner that Lewis would have liked. For
example, Sebranek told Lewis to talk to his unit manager, and
Ray dismissed Lewis's grievance as moot because Iverson
told her she had already spoken with Henneman. An
investigation into the harassment was performed in October
alleges that Henneman retaliated against him for reporting
the harassment by bullying him and writing conduct reports
accusing him of disrespect, disruptive behavior, and poor
work performance. Because of one of these conduct reports,
Iverson and Neuroth fired Lewis from his job in the kitchen
and Lewis was confined to his room for five days. Because of
another one of Henneman's conduct reports, Lewis lost
seven days of recreation and phone access. Lewis appealed one
of these conduct reports, and defendant John Doe 1 denied his
appeal. Lewis filed another grievance about the retaliation,
and Brown and Ray dismissed it without investigating.
Boughton approved the dismissal.
brings claims against defendants for harassing and
disciplining Lewis in retaliation for complaining about
sexual harassment, in violation of his First and Fourteenth
Amendment rights, pursuant to 42 U.S.C. § 1983.
First Amendment retaliation claims
prevail on a First Amendment retaliation claim, Lewis
“must ultimately show that (1) he engaged in activity
protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was
‘at least a motivating factor' in the
Defendants' decision to take the retaliatory
action.” Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009) (quoting Woodruff v. Mason, 542 F.3d
545, 551 (7th Cir. 2008)). A prisoner's right to file a
grievance is constitutionally protected. Hopkins v.
Linear, 395 F.3d 372, 375 (7th Cir. 2005); Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002). Being
fired and losing privileges such as recreation and phone time
would likely deter a person from complaining or filing
grievances in the future, see, e.g., Hart v.
Hairston, 343 F.3d 762, 764 (5th Cir. 2003); Harris
v. Fleming, 839 F.2d 1232, 1236-37 (7th Cir. 1988), and
Lewis has alleged that defendants Henneman, Iverson, and
Neuroth took actions that resulted in these deprivations
because of his complaints. So I conclude that Lewis has
stated a First Amendment retaliation claim against defendants
Henneman, Iverson, and Neuroth.
alleges that the remaining defendants retaliated by not
responding to his complaints. But it appears that these
defendants did respond to Lewis's complaints,
just not in a way that Lewis would have liked. Lewis has not
alleged that the remaining defendants took any actions that
would likely deter First Amendment activity in the future or
that Lewis's complaints were a motivating factor in their
decisions to respond in the ways they did. Lewis's
allegations that Brown and Ray denied his grievance, that
Boughton approved the denial, and that John Doe 1 denied
Lewis's appeal of Henneman's conduct report because
of Lewis's complaints are conclusory. Lewis has not
stated a claim for retaliation against the remaining
defendants. But I will give him an opportunity file an
amended complaint alleging facts showing that the remaining
defendants impeded the grievance process to such an extent
that a person of ordinary firmness would be deterred from
filing grievances, see David v. Goord, 320 F.3d 346,
353 (2d Cir. 2003), and that they were motivated to do so, at
least in part, by Lewis's complaints.
Fourteenth Amendment ...