United States District Court, E.D. Wisconsin
Stadtmueller District Judge
January 3, 2017, the Court screened the plaintiff's
original complaint. (Docket #8). The Court found that the
plaintiff had not stated any viable claims for relief.
Id. at 4. The Court struck the complaint and
required the plaintiff to offer an amended complaint to
continue this action. Id. at 4-5. On January 25,
2017, the plaintiff submitted an amended complaint. (Docket
noted in its January 3, 2017 screening order, the Court is
required to screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. See (Docket #8 at
1); 28 U.S.C. § 1915A(a). The Court must dismiss a
complaint or portion thereof if the prisoner has raised
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). The same
standards cited in the original screening order apply here.
(Docket #8 at 1-3).
amended complaint, the plaintiff alleges that he ordered
seven magazines in June 2016, three from Wall Periodicals
Bookstore and four from Harlem World Bookstore. (Docket #10
at 4). He believes that those magazines arrived but were
held, in violation of the prison's mail policy, because
Officer Schneider (“Schneider”) determined that
one of the Wall Periodicals magazines was on the Wisconsin
Department of Corrections (“DOC”) “denied
publications list.” Id. This is a running list
of books and magazines that the DOC has determined should not
be permitted in its prisons for various security and
disciplinary reasons. See (Docket #8 at 4). The
plaintiff was apparently allowed to receive the remaining two
Wall Periodicals magazines. (Docket #10 at 4).
plaintiff also inquired about his Harlem World magazines.
Id. They too were being held pending review
“by someone from Madison.” Id. The
plaintiff thereafter filed an inmate complaint about his mail
being held. Id. He was called to the mail room by
Officer Larson (“Larson”), apparently in response
to the complaint. Id. Larson told the plaintiff that
all of the Harlem World magazines were on the denied
publications list. Id. at 4-5. The plaintiff went to
the library to review that list and discovered that one of
them was permitted. Id. He also found that Larson
had falsely labeled one magazine, which was not on the list,
as another which was on the list, in order to keep
it from the plaintiff. Id.
the plaintiff alleges that Larson overcharged him for sending
a magazine back, “[w]hich shows that from the 1st
encounter with Officer Larson he had something personal
against me early on.” Id. at 5-6. The
plaintiff requests the following relief: 1) reimbursement of
$47.99 for the denied magazines, which were apparently
destroyed by the prison, 2) his filing fee in this matter,
and 3) “$1000.00 compensation.” Id. at
outset, the Court notes that it has generously reviewed the
plaintiff's initial complaint and the exhibits thereto in
assessing this complaint, as he appears to rely on them in
the amended complaint. See (Docket #1-1). As noted
in the Court's first screening order, a prior complaint
and all its attachments are superceded by an amended
complaint and so should not be considered by the Court in
assessing an amended complaint. See Duda v. Bd. of Educ.
of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1056-57 (7th Cir. 1998). Even viewing the old documents,
however, does not save the plaintiff's amended complaint.
plaintiff does not identify any legal basis for his lawsuit
in the amended complaint. The Court is thus left to determine
what grounds could possibly obtain him the relief he seeks.
The initial complaint references procedural due process in
denying the plaintiff his magazines. (Docket #1 at 4).
Assuming that continues to be a basis for relief in the
amended complaint, the plaintiff fails to state such a claim.
The relevant law is well-summarized by Judge Adelman:
The Due Process Clause of the Fourteenth Amendment
“provides that certain substantive rights-life,
liberty, and property-cannot be deprived except pursuant to
constitutionally adequate procedures.” Germano v.
Winnebago County, 403 F.3d 926, 928 (7th Cir. 2005)
(quoting Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 541 (1985)). Thus, when property is taken by
government action, due process generally requires that the
government provide an “opportunity to present reasons,
either in person or in writing, why proposed action should
not be taken....” Germano, 403 F.3d at 928
(quoting Cleveland, 470 U.S. at 546).
An individual is entitled to an opportunity for a hearing
before the state permanently deprives him of his property.
Parratt v. Taylor, 451 U.S. 527, 540 (1981),
overruled in part on other grounds by Daniels v.
Williams, 474 U.S. 327 (1986). However, a deprivation of
a constitutionally protected property interest caused by a
state employee's random, unauthorized conduct does not
give rise to a § 1983 procedural due process claim
unless the state fails to provide an adequate
post-deprivation remedy. Hudson v. Palmer, 468 U.S.
517, 533 (1984). In determining whether alleged conduct was
“random and unauthorized, ” the court considers
whether the conduct was predictable. Hamlin v.
Vaudenberg, 95 F.3d 580, 584 (7th Cir. 1996).
Predictability is determined both by the amount of discretion
exercised by an official as well as the extent to which that
discretion is uncircumscribed. Id. In
Parratt, after a prison inmate did not receive hobby
materials he had ordered because normal procedures for the
handling of mail at the prison were not followed, he claimed
that the conduct of the prison officials deprived him of
property without due process of law. [Parratt, ] 451
U.S. at 530. The Supreme Court explained that although the
state had deprived the inmate of property, “the
deprivation did not occur as a result of some established
state procedure. Indeed, the deprivation occurred as a result
of the unauthorized failure of agents of the State to follow
established state procedure.” Id. at 543.
Wisconsin law provides tort remedies to individuals whose
property has been converted or damaged by another. See
Wis.Stat. §§ 893.35 and 893.51. If a deprivation of
property did not occur as the result of some established
procedure and state law provides an adequate post-deprivation
remedy for redressing the missing property, due process has
been satisfied. Parratt, 451 U.S. at 543-44; see
also Hamlin, 95 F.3d at 585 (holding that
Wisconsin's post-deprivation procedures are adequate,
albeit in a different context).
Johnson v. Wallich, No. 13-CV-614-LA, 2013 WL
5651385 at *2-3 (E.D. Wis. Oct. 15, 2013). This law applies
precisely to the plaintiff's complaint. He alleges not
that Schneider and Larson followed DOC's mail policy, but
that they did not follow it in order to withhold his
magazines. Their conduct, then, was of the “random and
unauthorized” sort identified by Hudson.
Further, as the Court noted in the original screening order,
a tort action is available to the plaintiff in Wisconsin
state court to recover for the disposed magazines. See
Rogers v. Morris, 34 Fed.App'x 481, 482-83 (7th Cir.
2002). The plaintiff has therefore failed to present a viable
due process claim.
other potentially relevant constitutional basis for the
plaintiff's complaint is the First Amendment. For this
claim, Judge Reagan provides an excellent primer:
The Supreme Court has recognized that prisoners have
protected First Amendment interests in both sending and
receiving mail. See generally Thornburgh v. Abbott,
490 U.S. 401 (1989) (discussing the scope of a prisoner's
First Amendment rights and collecting cases on the framework
to be used to assess mail screening mechanisms); Turner
v. Safely, 482 U.S. 78 (1987); Pell v.
Procunier, 417 U.S. 817, 822 (1974) (“[a] prison
inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections
system”). The Seventh Circuit has held that
“[t]he free-speech clause of the First Amendment
applies to communications between an inmate and an
outsider.” Zimmerman v. Tribble, 226 F.3d 568,
572 (7th Cir. 2000) (citing Martin v. Brewer, 830
F.2d 76, 76 (7th Cir. 1987)). To assert a cause of action for