United States District Court, W.D. Wisconsin
DONALD A. NEWELL, JR., Plaintiff,
STATE OF WISCONSIN, CHIPPEW A COUNTY and WISCONSIN DEPARTMENT OF CORRECTIONS, Defendants.
OPINION AND ORDER
BARBARA B. CRABB District Judge.
plaintiff Donald Newell is incarcerated at the New Lisbon
Correctional Institution, which is in New Lisbon, Wisconsin.
He has filed a complaint and paid the filing fee in full, so
his claims are ready for screening by the court under 28
U.S.C. § 1915A. Because plaintiff has not identified a
proper defendant and the complaint does not provide fair
notice of his claims, I am dismissing the complaint without
prejudice to plaintiff's filing an amended complaint that
corrects the defects discussed below.
body of plaintiff's complaint is a single page and most
of that is devoted to case law citations. The remainder is a
request for relief. He asks the court to enjoin defendants
from “interfer[ing]” with his “usage”
of his “Veteran's Disability Pension” and to
require them to return any money they have already taken. The
complaint includes no factual allegations.
complaint has multiple problems. First, under Rule 8 of the
Federal Rules of Civil Procedure, plaintiff is required to
provide fair notice of his claims to each defendant and set
out claims that are plausible on their face. Appert v.
Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 622 (7th
Cir. 2012); Bausch v. Stryker Corp., 630 F.3d 546,
559 (7th Cir. 2010). A plaintiff cannot provide fair notice
when his complaint includes no factual allegations.
request to enjoin defendants from interfering with his
“usage” of the pension suggests that
plaintiff's account may have been frozen or that
restrictions were placed on it. However, his request for
“the return of all amounts taken from him”
suggests that money is being deducted from his account for an
whether plaintiff's money is being restricted or
confiscated, a determination whether that conduct violates
his rights would depend upon the circumstances. Plaintiff
seems to believe that there is an absolute prohibition
against any restriction on his use of his pension, but I am
not aware of any law that would support that view and the
cases plaintiff cites are not instructive. Each of them is a
criminal case from the 1800s about individuals prosecuted for
offenses relating to withholding pensions wrongfully, but
none of them discuss a pensioner's rights under civil law
and none of them state that pensions are immune from
otherwise valid restrictions. E.g., Ballew v.
United States, 160 U.S. 187 (1895); United States v.
Irvine, 98 U.S. 450 (1878).
plaintiff does not identify a cause of action or legal theory
in his complaint, the most plausible are under the takings
clause of the Fifth Amendment and the due process clause of
the Fourteenth Amendment. Neither of these clauses creates a
blanket right against government interference with property.
takings clause prohibits the government from a taking a
person's property without just compensation. Barbian
v. Panagis, 694 F.2d 476, 482 & n. 4 (7th Cir.1982).
However, if officials are deducting money from
plaintiff's account for a reasonable fee or to pay his
restitution or other debts, that would not necessarily
violate the takings clause. Edmonson v. Fremgen, 590
F. Appx 613, 615 (7th Cir. 2014); Meineke v. Finnan,
No. 1:11-cv-01624-twp, 2014 WL 3586546, at *3 (S.D. Ind. July
process clause prohibits the government from taking a
person's property without notice and an opportunity to be
heard. Mann v. Calumet City, Illinois, 588 F.3d 949,
954 (7th Cir. 2009). It is reasonable to infer at the
pleading stage that plaintiff has a property interest in his
pension, both before and after it is deposited in his prison
account. Campbell v. Miller, 787 F.2d 217, 222 (7th
Cir.1986). However, plaintiff does not say whether he has
been denied notice or an opportunity to be heard. If money is
being taken from plaintiff's account as part of an
established state procedure, that would not necessarily
violate the due process clause. E.g., Mahers v.
Halford, 76 F.3d 951, 956 (8th Cir. 1996) (rule
requiring that 20 percent of prisoner's deposits be used
for restitution obligations did not violate due process
clause); Wolfe v. Litscher, No. 03-C-302-C, 2003 WL 23221146,
at *3 (W.D. Wis. July 7, 2003) (“[S]tate corrections
officials can freeze or debit an inmate's account to
enforce restitution orders issued by prison disciplinary
bodies, provided that the disciplinary proceedings conform to
the minimum requirements of procedural due process.”);
Richards v. Cullen, 150 Wis.2d 935, 941, 442 N.W.2d 574,
576-77 (Ct. App. 1989) (rule requiring prisoners to save
percentage of deposits for release did not violate due
process). Further, if individual officials are taking money
from plaintiff in violation of state policy, that would not
violate the due process clause because plaintiff would have
adequate remedies under state law. West v. Berge, No.
05-C-37-C, 2005 WL 503819, at *4 (W.D. Wis. Feb. 28, 2005)
(dismissing claim for unauthorized deduction from
prisoner's account because prisoner had adequate remedies
under chapters 810 and 893 of the Wisconsin Statutes, which
provide individuals with causes of action for replevin and
short, plaintiff cannot state a claim under the takings
clause or the due process clause without describing the
actions that officials are taking, the procedures used in
taking those actions and the reasons for the officials'
conduct. I will give plaintiff an opportunity to file an
amended complaint that provides that information. Further, if
plaintiff wishes to raise a claim under the due process
clause, he should identify the process he believes he is due
but has not received. If plaintiff believes that there is a
federal statute that gives him greater rights than the
Constitution and creates a civil cause of action allowing him
to file a lawsuit, he should identify that statute in his
second problem with plaintiff's complaint is that he has
not identified a party that he can sue. Neither the state of
Wisconsin nor the Wisconsin Department of Corrections can be
sued for constitutional violations. Thomas v.
Illinois, 697 F.3d 612, 613-14 (7th Cir. 2012). Rather,
plaintiff must sue the individual officials who are
responsible for the unlawful conduct.
municipal government such as Chippewa County can be sued for
violating the Constitution, but only if the county has a
policy that caused the violation. Monell v. Dept. of
Social Services of the City of New York, 436 U.S. 658
(1978). In this case, plaintiff not only failed to identify a
county policy, but he also failed to explain how the county
or any other entity or person is involved in decisions
regarding his pension. If plaintiff chooses to file an
amended complaint, he must include information explaining how
each defendant is involved in allegedly violating his rights.
ORDERED that plaintiff Donald Newell's complaint is
DISMISSED WITHOUT PREJUDICE for his failure to provide fair
notice of his claims. Plaintiff may have until August 8,
2017, to file an amended complaint that corrects the problems
discussed in this order. If plaintiff does not respond by
August 8, 2017, I will dismiss the complaint with prejudice,
direct the clerk of ...