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Garner v. Hill

United States District Court, E.D. Wisconsin

March 1, 2017

OSCAR GARNER, Plaintiff,
J. HILL, et al., Defendants.


          LYNN ADELMAN, District Judge

         Plaintiff Oscar Garner, a Wisconsin state prisoner who is representing himself, filed a civil rights action under 42 U.S.C. § 1983, alleging that defendants violated his Fourteenth Amendment rights at the Wisconsin Secure Program Facility (“WSPF”). ECF No. 1. This matter comes before me on plaintiff's motion for leave to proceed without prepayment of the filing fee and for screening of the complaint. ECF Nos. 1-2.

         The Prison Litigation Reform Act (“PLRA”) applies to this action because plaintiff was incarcerated when he filed this complaint. 28 U.S.C. §1915. The law allows inmates to proceed with their lawsuits in federal court without pre-paying the $350 filing fee. Id. The inmate must comply with certain requirements, one of which is to pay an initial partial filing fee. Id.

         On January 23, 2017, I assessed an initial partial filing fee of $33.88. ECF No. 6. Plaintiff paid that amount on February 1, 2017. Therefore, I will grant plaintiff's motion to proceed without prepayment of the filing fee.

         The PLRA requires me 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). I may dismiss an action or portion thereof if the claims alleged are “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

         To state a claim under the federal notice pleading system, plaintiffs must provide me with a "short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific facts, and need only provide "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Labels and conclusions” or a "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).

         The factual content of the complaint must allow me to “draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Indeed, allegations must “raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.

         I follow the two-step analysis set forth in Twobly to determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First, I determine whether the plaintiff's legal conclusions are supported by factual allegations. Id. Legal conclusions not support by facts “are not entitled to the assumption of truth." Id. Second, I determine whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief." Id. Pro se allegations, “however inartfully pleaded, ” are given a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).


         On April 13, 2005, Milwaukee County Circuit Court Judge Karen E. Christenson entered an order in criminal case no. 04-CF-1584 instructing plaintiff to pay restitution and other costs in the amount of $3, 008.66, payable from up to 25% of his prison wages. ECF No. 1, ¶ 4. Ten years later, in June 2015, plaintiff received his inmate trust account statement which indicated that he had an outstanding balance of $2, 473.66 for criminal case no. 04-CF-1584. Id., ¶ 5. On June 30, 2015, someone at WSPF wrote on plaintiff's inmate trust account statement that they “took $2, 473.66 for court obligations.” Id., ¶ 6. Ms. Sutter, an Inmate Complaint Examiner (“ICE”), confirmed that plaintiff owed this amount and was required to pay it. Id., ¶ 7.

         About a year later, in June 2016, Ann M. Peacock (not a defendant in the case) sent plaintiff a letter stating, among other things, that he still owed $2, 473.66 in criminal case no. 04-CF-1584. Id., ¶ 8. Plaintiff wrote to J. Hill (inmate accounts) and told him that the Milwaukee County Clerk of Court still had not received his payment of $2, 473.66 even though someone had taken the money out of his prison account over a year ago. Id., ¶ 9. Hill wrote back on August 31, 2016 stating that he sent the money to the “cashier's unit.” Id., ¶¶ 9, 35. Plaintiff wrote to the cashier's unit several times with no response. Id., ¶¶ 10-11. He also wrote to Hill, Sutter, Molldrem, Boughton, Dickman, Jim Schwochert, Cathy Jess, and Julio Barron with no response. Id., ¶ 12. Plaintiff also filed an inmate complaint which was rejected because WSPF had “already addressed this issue through WSPF-2016-21379, ” a different inmate complaint plaintiff had filed earlier in the year. Id., ¶ 13.

         Plaintiff received an updated trust account statement indicating that he still owed money in criminal case no. 04-CF-1584. Id., ¶ 14. Along with this statement, plaintiff received notice that WSPF would now deduct 50% from his prison wages. Id., ¶ 15. Plaintiff never gave anyone permission to deduct 50% from his prison wages, and the Milwaukee County Circuit Court never ordered WSPF to start deducting 50% from his account. Id., ¶¶ 20, 29-32. Plaintiff states that he continues to pay restitution for an obligation he satisfied sometime in 2015. Id., ¶¶ 24-25, 38-39.

         Plaintiff filed a different inmate complaint regarding the 50% deduction, and this complaint was dismissed because he had “signed a settlement agreement [in WSPF-2015-12804] saying that he would pay all restitution owed.” Id., ¶ 33. Plaintiff states that he never signed a settlement agreement and defendants cannot prove that he did. Id., ¶¶ 32, 34.

         In October 2016, plaintiff asked Ms. Broadbent to print out a case called Bub v. Fuller. Id., ¶ 21. She looked for the case on LexisNexis and could not find it. Id. She told plaintiff that if the case is not on LexisNexis, she could not go to other sources to look for it due to prison rules. Id. Plaintiff states that there ...

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