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Simpson v. Litscher

United States District Court, E.D. Wisconsin

April 25, 2017

WILLIE C. SIMPSON, Plaintiff,
v.
JON E. LITSCHER, SCOTT ECKSTEIN, JOHN KIND, CAPTAIN SCHULTZ, LT. ELSINGER, LT. VAHLAHAN, SGT. KOELLER, SGT. MENNING, SGT. ROZMARYNOSKI, SGT. HERT, C.O. BRUNNER, C.O. GRABOWSKI, C.O. BEBO, C.O. BONNIN, C.O. MEYER, C.O. DELFOSSE, C.O. WEYCKER, C.O. TREML, C.O. DIEDRICK, C.O. PEOTTER, C.O. POTTS, C.O. VANDEVELDEN, C.O. SCHEMECK, C.O. NEMETZ, C.O. REYES, C.O. GUERRERO, C.O. LEWIS, C.O. YANG, C.O. HEFFERNAN, C.O. ROBEHHAGEN, J. PERTTU, C.O. PETER BAUGH, C.O. AVERY, C.O. BRUSO, C.O. TURCK, and JOHN DOES, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         Plaintiff, who is incarcerated at Green Bay Correctional Institution (“GBCI”), 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 motions to proceed in forma pauperis. (Docket #3, #9). Plaintiff's initial partial filing fee was waived. (Docket #12); 28 U.S.C. § 1915(b)(4).

         Before the Court screens Plaintiff's complaint, it must address the matter of whether granting him in forma pauperis status is appropriate. As part of the Prison Litigation Reform Act (“PLRA”), if a prisoner files more than three actions or appeals which are dismissed as frivolous or malicious or for failure to state a claim upon which relief can be granted, the prisoner is prohibited from bringing any other actions in forma pauperis unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Commonly known as the “three-strikes” provision, a prisoner is said to have struck out once he has accrued three dismissals under this section.

         Here, it is evident that Plaintiff has accrued many, many strikes during his long period of incarceration. Examples include: (1) Simpson v. Walker, 14-CV-198 (E.D. Wis.); (2) Simpson v. Walker, 11-CV-838 (W.D. Wis.); (3) Simpson v. Douma, 04-CV-298 (W.D. Wis.); and (4) Simpson v. Maas, 04-CV-29 (W.D. Wis.). Indeed, Plaintiff was recently subjected to a filing bar throughout this Circuit under Support Systems International Inc. v. Mack, 45 F.3d 185, 186-87 (7th Cir. 1995), for his incessant and frivolous filings. Simpson v. Eckstein, No. 16-3436, Docket #14 (7th Cir. Mar. 30, 2017). Pursuant to that order, Plaintiff “is barred from filing further civil suits in the courts of this circuit” until he pays a fine of $1, 000. Id. at 2. He is also barred from filing any further collateral attacks on his conviction or sentence until the fine is paid. Id. Because Plaintiff filed this suit on March 10, 2017, shortly before the Mack bar was issued, it does not appear that it prevents further filings from him in connection with this action.

         Having determined that Plaintiff has struck out, the Court turns to the consideration of whether he meets the exception for “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). As will be explained further below, Plaintiff alleges that prison guards are threatening to kill him and are encouraging inmates to kill him, which represents an imminent physical danger to Plaintiff. Thus, the Court finds that Plaintiff's allegations satisfy the imminent-danger exception, and it will grant him leave to proceed in forma pauperis in this case.

         The Court now proceeds to screen Plaintiff's complaint. 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. § 1915A(b).

         A claim 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); Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).

         To 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)); 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 complaint 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.

         In considering whether a complaint states a claim, courts should first “identif[y] 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.

         To 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); 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)).

         Plaintiff names a panoply of defendants in this case. (Docket #1 at 1-2). First is Wisconsin Department of Corrections Secretary Jon E. Litscher (“Litscher”). Id. at 2. Next is Scott Eckstein (“Eckstein”), warden at GBCI. Id. Plaintiff also names GBCI Security Director John Kind (“Kind”), and the prison's inmate complaint examiner, J. Perttu (“Perttu”). Id. Finally, Plaintiff names over thirty-one other individuals, some identified by name and some identified only as John Does, who are all correctional officers of various ranks at GBCI (the “Guard Defendants”). Id.

         Plaintiff is presently confined to segregation at GBCI. Id. at 4. Between 2015 and January 2017, he filed numerous challenges to his conviction and sentence. Id. As noted above, they were so patently frivolous as to warrant a Mack bar. Plaintiff's complaint arises primarily from allegations that Defendants have endeavored to stop him from filing these collateral attacks. Id. at 3.

         Between January 2016 and March 2017, the Guard Defendants routinely came to Plaintiff's cell and threatened to harm or kill him for pursuing these collateral attacks. Id. at 4. They also encouraged and recruited prisoners to assault Plaintiff should he venture out into the general prison population. Id. Moreover, the prisoners in segregation have agreed to deny Plaintiff's allegations that the Guard Defendants are encouraging them to attack Plaintiff. Id. In one specific instance, C.O. Grabowski escorted another inmate to Plaintiff's cell and encouraged the inmate to confront Plaintiff about his litigation efforts. Id. at 6. The inmate kicked the door and threatened to assault Plaintiff once Plaintiff was released from segregation. Id. The officer stood by and encouraged the inmate's threats. Id. Plaintiff claims that Perttu and Eckstein, who reviewed his grievances about the Guard Defendants' threats against him, acted with deliberate indifference to the risk of harm facing Plaintiff and actively covered up the Guard Defendants' misconduct by ignoring and rejecting his grievances. Id. at 3, 6.

         In a further attempt to disrupt and discourage Plaintiff's litigation, the Guard Defendants routinely come to Plaintiff's cell when he is asleep and wake him, in order to deprive him of sleep and provoke confrontation between him and the officers. Id. at 6. Another tactic involves harming Plaintiff's health. Plaintiff suffers from HIV as well as several other conditions. Id. at 5. Between March 2016 and March 2017, Plaintiff has not received treatment for his conditions, either from outside specialists or prison doctors, because the Guard Defendants prevent him from leaving his cell by threatening to assault him should he leave the cell. Id. Additionally, they keep him from taking necessary food and medication because when they drop ...


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