United States District Court, E.D. Wisconsin
SHAWN D. JONES, Plaintiff,
JON LITSCHER AND REBECCA KENNEDY, Defendants.
WILLIAM E. DUFFIN U.S. Magistrate Judge
Shawn D. Jones, a state prisoner, is representing himself. He
filed a complaint alleging that the defendants forced him to
enroll in educational programs in prison.
court has jurisdiction over this action pursuant to 28 U.S.C.
§ 1331 because the matter arises under federal statutes.
The case was assigned to this court according to the random
assignment of civil cases pursuant to 28 U.S.C.
§636(b)(1)(B) and General Local Rule 72 (E.D. Wis.), and
Jones has consented to United States magistrate judge
jurisdiction pursuant to 28 U.S.C. § 636(c) and General
Local Rule 73 (E.D. Wis.).
matter comes before the court on Jones's motion for leave
to proceed without prepayment of the filing fee (in forma
pauperis), his motion for leave to file an amended
complaint, and for screening of Jones's amended
complaint. Motion for Leave to Proceed without Prepayment
of the Filing Fee Jones has been assessed and paid an
initial partial filing fee of $1.02. See 28 U.S.C.
§ 1915(b)(1). The court will grant his motion for leave
to proceed without prepayment of the filing fee.
for Leave to File an Amended Complaint
October 24, 2016, Jones filed a motion for leave to file an
amended complaint, along with an amended complaint and
exhibits. The original complaint has not been served, and
Jones may amend the complaint as a matter of course under
Federal Rule of Civil Procedure 15(a)(1). Therefore, I will
grant Jones's motion and screen his proposed amended
of the Amended Complaint
court shall 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
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. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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)
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 and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atlantic Corp. v. Two m bl y ,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). However, a complaint that offers
mere “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). 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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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, second, “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: 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) (citing Kramer v. Village of North 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. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
Amended Complaint's Allegations
is a state prisoner incarcerated at New Lisbon Correctional
Institution (NLCI). The defendants are Jon Litscher,
Secretary of the Wisconsin Department of Corrections ...