United States District Court, E.D. Wisconsin
WILLIE C. SIMPSON, Plaintiff,
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.
Stadtmueller U.S. District Judge.
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. §
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
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.
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.
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).
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).
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.
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.
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)).
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”).
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.
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.
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