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Antepenko v. Litscher

United States District Court, E.D. Wisconsin

January 10, 2017

WILLIAM ANTEPENKO, Plaintiff,
v.
JON E. LITSCHER, et al., Defendants.

          DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING HIS MOTION TO APPOINT COUNSEL (DKT. NO. 9), AND SCREENING THE COMPLAINT

          HON. PAMELA PEPPER United States District Judge

         The plaintiff, a Wisconsin state prisoner who is representing himself, 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. In addition, the plaintiff filed a motion to appoint counsel. Dkt. No. 9. This order resolves those motions 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, Magistrate Judge David E. Jones (the judge assigned to the case at that time) ordered the plaintiff to pay an initial partial filing fee of $26.74. Dkt. No. 5. On September 22, 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. A few days later, the plaintiff paid an initial partial filing fee of $140-more than the court required. 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 began his incarceration at Oshkosh Correctional Institution on September 8, 2015. Dkt. No. 1 at 3. He alleges that Oshkosh has classified him as an “untreated Sex Offender.” Id. at 4. A few days after his arrival, the plaintiff sent visitor questionnaires to people he wanted to add to his visitor list. Id. at 3. The plaintiff expected the approval process to take four to six weeks. Id. At some point, he asked the social worker “for Middle Center” for an update. Id. The social worker informed the plaintiff that they were waiting for defendant Joseph Brooks, a probation and parole agent, to approve adding the plaintiff's minor son to the visitor list. Id.

         The plaintiff asked his mother to call Brooks. Id. She did, and according to the plaintiff, Brooks told her that Brooks did not have a problem with the plaintiff receiving visits from his son. Id. A week passed without the plaintiff hearing anything, so he asked the social worker if she had heard anything from Brooks. Id. The social worker informed the plaintiff that Brooks had denied the plaintiff's request to place his son on his visitation list. Id. When the plaintiff asked the social worker why Brooks would have lied to his mother about having no objection, the social worker had no response. Id.

         The plaintiff then asked defendant Rex Smith, the unit manager, why Brooks had denied his visitation request after telling the plaintiff's mother the he would approve the request. Id. R. Smith told the plaintiff that he knew Brooks personally, and that Brooks would not lie. Id. The plaintiff then asked R. Smith to assist him with an Early Program Review Committee (PRC) Action to obtain a transfer to another institution, “based on program needs and the conflict with Defendant Rex Smith.” Id. The plaintiff states that R. Smith told him to be careful what he wrote, or he would end up in segregation. Id. at 4. R. Smith then called the plaintiff a liar. Id.

         The next day, the plaintiff received his visitor request back from Warden Judy Smith. Id. She denied his requests for visits with his son. Id. J. Smith stated, “[T]his would be a rehabilitation hindrance and that Plaintiff may be victimized.” Id. Defendant Jenny Delvaux, a unit manager, also told the plaintiff that he may be subject to victimization. Id. at 5. The plaintiff indicates that he does not understand how he could be victimized by his own son. Id.

         The plaintiff filed an inmate grievance, which “was received” on November 2, 2015. Id. at 4. T. Murphy (who the plaintiff does not name as a defendant) denied the grievance on November 18, 2015. Id. The plaintiff appealed the denial, and defendant ...


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