United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Benjamin Biese, who is incarcerated at the Green Bay
Correctional Institution, filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. This matter comes before the court for
screening Plaintiff's complaint and on his motions to
proceed in forma pauperis and to access the courts,
court documents, and the law library.
Motion to Proceed In Forma Pauperis
plaintiff is required to pay the $350.00 statutory filing fee
for this action. See 28 U.S.C. § 1915(b)(1). If
a prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing of his complaint, as required under 28
U.S.C. § 1915(a)(2) and has been assessed an initial
partial filing fee of $2.41. However, Plaintiff lacks the
funds to pay the partial filing fee. Therefore, the court
waives the initial partial filing fee. 28 U.S.C. §
Screening of the Complaint
court is required 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
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 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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citations 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. 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. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
claims that after he was allegedly sexually assaulted by the
GBCI security director, he reported the incident and
requested medical treatment. He asserts that Captain Stevens,
the GBCI Prison Rape Elimination Act (PREA) Investigator
failed to contact the office of special operations for the
Department of Corrections investigation and law enforcement.
He also claims that he asked Defendants Stevens and Van Lanen
to call for medical assistance but they denied his requests.
allegations that Stevens failed to follow the requirements
set forth in the PREA are not actionable because nothing in
the PREA suggests that it was intended to create a private
right of action. See Gonzaga Univ. v. Doe, 536 U.S.
273, 286 (2002) (“where the text and structure of a
statute provides no indication that Congress intends to
create new individual rights, there is no basis for a private
suit, whether under § 1983 or under an implied right of
action”). Plaintiff's allegations do state an
Eighth Amendment claim for deliberate indifference against
Defendants Stevens and Van Lanen. However, the complaint
fails to allege sufficient direct involvement of Defendants
Baier and Lemons and therefore fails to state a claim against
Motion for Access
also moves for access to the court, court documents, and the
law library. He asserts that after making threats in February
2017, he was placed in “ultra-secure detention.”
As a result, he has been restricted from accessing any court,
court documents, and the law library and only allowed to send
one letter in the last forty-five days. “[T]he
fundamental constitutional right of access to the courts
requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries . . .
.” Bounds v. Smith, 430 U.S. 817, 828 (1977).
The Seventh Circuit has clarified that “the mere denial
of access to a prison library or other legal materials is not
itself a violation of a prisoner's rights; his right is
to access the courts, and only if the
defendant's conduct prejudices a potentially meritorious