United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
a prisoner at Waupun Correctional Institution, filed a
pro se complaint under 42 U.S.C. § 1983
alleging that his civil rights were violated. (Docket #1).
This matter comes before the Court on Plaintiff's motion
to proceed in forma pauperis. (Docket #2). The Court
assessed and Plaintiff has paid the initial partial filing
fee of $15.62. 28 U.S.C. § 1915(b)(4).
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915A, 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. Id. § 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts; 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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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. The
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court 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, the
plaintiff must allege that: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The court is obliged to give Plaintiff's pro se
allegations, “‘however inartfully pleaded,
'” a liberal construction. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
alleges that on May 27, 2016, he received a memorandum from
correctional officer Lieutenant Burns (“Burns”)
informing him that he would be subject to disciplinary action
if Plaintiff contacted his daughter by letter or phone.
(Docket #1 at 2). At this time, Plaintiff's daughter was
fifteen-and-a-half years old. Id. The memorandum was
prompted by a complaint from the mother of Plaintiff's
daughter, who complained that Plaintiff was writing to his
daughter at her school. Id. Plaintiff claims that
writing letters is the only form of contact he has with his
daughter. Id. at 3.
alleges that, in order to challenge the no-contact order, he
sent letters from his daughter to Burns to show Burns that
his daughter has a desire to communicate with him.
Id. Additionally, Plaintiff states that he appealed
Burns' memorandum but that his complaint was dismissed
without an investigation. Id. Plaintiff views
Burns' memorandum and threat of discipline as
“effectively terminat[ing] [his] parental
rights.” Id. He further contends that
Burns' action violated his First Amendment right to
communicate with his child by mail. Id. Plaintiff
maintains that the memorandum “was issued without any
proof of wrongdoing” by Plaintiff. Id.
Further, when Plaintiff inquires with Burns about what facts
support the no-contact order, Burns does not respond.
Id. Consequently, Plaintiff also asserts that
deprivation of the right to contact his daughter without
proof of wrongdoing and without recourse constitutes a
violation of his due process rights under the Fourteenth
Amendment. Id. Plaintiff seeks an injunction from
the Court suspending the no-contact order and monetary
the liberal standard of review that the Court must apply at
the screening stage, it finds that Plaintiff should be
permitted to proceed on his First and Fourteenth Amendment
claims. Inmates generally have a right under the First
Amendment to send and receive mail. Kaufman v.
McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005). Prison
regulations that affect a prisoner's receipt of non-legal
mail implicate First Amendment rights of free speech and
association and must be “reasonably related to
legitimate penological interests.” Thornburgh v.
Abbott, 490 U.S. 401, 409 (1989); Pell v.
Procunier, 417 U.S. 817, 822 (1974) (“In the First
Amendment context, . . .a prison inmate retains those First
Amendment rights [of freedom of speech and association] that
are not inconsistent with his status as a prisoner or with
the legitimate penological objectives of the corrections
system.”). Here, without an explanation from Burns as
to why the no-contact order was instituted, the Court is
obliged to permit this claim to proceed further.
same goes for Plaintiff's Fourteenth Amendment claims.
The Fourteenth Amendment Due Process Clause offers both
substantive and procedural protections. Substantive due
process protects certain fundamental liberty interests, such
as those arising from the parent-child relationship, while
procedural due process relates to the fairness of the
procedures used to effect deprivations of liberty or
property. Zinermon v. Burch, 494 U.S. 113, 125
(1990). When an inmate's mail is restricted, the
requirements for procedural due process are satisfied if the
inmate receives notice of the restriction and has a
reasonable opportunity to protest, and if the restriction is
reviewed by a third party who did not participate in the
original decision. See Procunier v. Martinez, 416
U.S. 396, 418-19 (1974). As for substantive due process, in
this case it may be that Plaintiff's liberty interest
arising from the parent-child relationship is threatened by
Burns' action. See Dotson v. Grayson, 39 F.
App'x 991, 993 (6th Cir. 2002) (allowing inmate to
proceed on claim that no-contact order with daughter
allegedly violated First Amendment and substantive due
process). Suffice to say that at the screening stage, the
Court does not find these two due process claims to be wholly
without merit. It will be for Defendant to explain the
sufficiency of the procedures used to institute the
no-contact order and how it relates to Plaintiff's
potential liberty interests at stake in that order.
reasons stated above, the Court finds that Plaintiff may
proceed on the following claims: (1) a First Amendment free
speech and association claim arising from Burns' May 27,
2016 no-contact order; (2) a Fourteenth Amendment procedural
due process claim for deprivation of Plaintiff's ability
to contact his daughter, pursuant to Burns' May 27, 2016
no-contact order, without due process of law; and (3) a
Fourteenth Amendment substantive due process claim arising
from Burns' May 27, 2016 no-contact order.
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that pursuant to an
informal service agreement between the Wisconsin Department
of Justice and this Court, copies of Plaintiff's
complaint and this order will be electronically sent ...