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), DENYING HIS MOTION TO APPOINT COUNSEL (DKT.
NO. 9), AND SCREENING THE COMPLAINT
PAMELA PEPPER United States District Judge
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
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, 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.
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 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.
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.
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.
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.
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 ...