United States District Court, E.D. Wisconsin
TERRY C. KEMPER, Plaintiff,
BRIAN PIECH, LT. JONES, JASON ALDANA, STEVEN JOHNSON, WARDEN PAUL KEMPER, and MICHAEL HAGAN, Defendants.
STADTMUELLER, U.S. DISTRICT JUDGE
who is incarcerated at the Racine Correctional Institution
(“RCI”), filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). Plaintiff has paid the $400.00 filing
fee for this civil action in full.
the payment of any fee, 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).
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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
complaint is simple. He is an inmate at RCI, and he sometimes
orders sexually explicit reading materials. See
(Docket #1 at 2). He is also a sex offender. Id. at
officials in various positions at the prison, have denied him
access to the materials he orders because he has not yet
successfully completed a prison sex offender treatment
program. Id. at 3. But Plaintiff believes he is
entitled to these materials under a settlement of the
Aiello case in 2000, regardless of his completion of
sex offender treatment. See id.; Aiello v.
Litscher, 104 F.Supp.2d 1068 (W.D. Wis. 2000). He
further claims that his inmate grievances about the matter
were denied without a change in policy. (Docket #1 at 3).
Plaintiff contends that he is being singled out for
continuing denial of these materials based on his status as a
sex offender. Id. at 2, 4.
to Plaintiff, there is a multi-step review process s that
inmates receive before they are distributed. In
Plaintiff's case, the first line of review is RCI chief
psychologist Dr. Michael Hagan (“Hagan”).
Id. at 3. The metrics he applies in his review of
these materials are not explained. See Id. Next,
Plaintiff states that Sgt. Brian Piech (“Piech”),
the prison property sergeant, receives or reviews Hagan's
determination. Id. Plaintiff alleges that Piech does
so “without any review of compliance with [Department
of Corrections (“DOC”)] policies and
procedures.” Id. Similarly, Plaintiff
complains that the RCI property supervisor, Lt. Jones
(“Jones”), and the prison security director,
Jason Aldana (“Aldana”), “refuse to review
those books in accordance with the approved [chain of command
(“COC”)]” procedures set forth in the RCI
inmate handbook. Id. Plaintiff does not explain the
COC procedures or what these individuals' roles are
within those procedures. Id. Finally, it appears
that, according to Plaintiff, the assistant warden and the
warden at RCI, Steven Johnson (“Johnson”) and
Paul Kemper (“Kemper”), respectively, approved of
the denials as consistent with DOC policy and issued written
memoranda to Plaintiff to that effect. Id. Plaintiff
seeks solely injunctive relief against Defendants to stop
denial of his publications and enforce review of incoming
publications according to what he feels are the appropriate
policies and procedures. Id. at 4.
Plaintiff's complaint requires two preliminary notes.
First is a realistic appreciation of the nature of his
claims. While Plaintiff complains that certain Defendants
have not been following DOC or COC policies in reviewing his
publications, his claim is not that they are arbitrarily
deciding not to follow such procedures with respect to his
publications. Instead, it is obvious that there are special
policies or procedures for review of publications received by
sex offenders. Johnson's and Kemper's memoranda seem
to confirm this. Plaintiff desires to be subject only to the
run-of-the-mill publication review policies, and Defendants
have denied him this request.
because Plaintiff seeks solely injunctive relief and not
damages, his suit can only proceed against Defendants in
their official, not individual, capacities. Injunctive relief
is not available against a state official sued in his
individual capacity. See Greenawalt v. Ind. Dep't of
Corr., 397 F.3d 587, 589 (7th Cir. 2005); Ameritech
Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002);
Luder v. Endicott, 253 F.3d 1020, 1022-23 (7th Cir.
2001); Hill v. Shelander, 924 F.2d 1370, 1374 (7th
Cir. 1991) (“[I]njunctive relief against a state
official may be recovered only in an official capacity
suit[.]”). This makes sense, as reforming or enforcing
publication-review policies could only be effected by reason
of Defendants' respective positions of authority within
the prison administration. See Dertz v. City of
Chicago, 912 F.Supp. 319, 327-28 (N.D. Ill. 1995);
Feit v. Ward, 886 F.2d 848, 857 (7th Cir. 1988).
understanding, screening Plaintiff's complaint becomes
much simpler. The Supreme Court teaches that “a suit
against a state official in his or her official capacity is
not a suit against the official but rather is a suit against
the official's office.” Will v. Mich. Dep't
of State Police, 491 U.S. 58, 71 (1983). Because a suit
brought against an official in his official capacity is in
essence a suit against the State, it becomes duplicative to
name multiple officials in their official capacities.
Instead, a prisoner's official-capacity claim seeking
injunctive relief is normally lodged with the warden of the
institution, as this is the person in the best position to
implement any injunctive relief granted. Thus, only Kemper
needs to remain as a Defendant in this action, and the other
Defendants will be dismissed.
these preliminary matters addressed, the Court turns to
screening Plaintiff's claims. This presents some
difficulty, however, as Plaintiff only states that his case
arises under Section 1983, without identifying any
constitutional provision he believes Defendants have
violated. See (Docket #1 at 4). Yet this is no bar
at the screening stage, as the Court may connect the pleaded
facts to appropriate legal claims. See Hefferman v.
Bass, 467 F.3d 596, 600 (7th Cir. 2006).
case, Plaintiff's claims would arise, if at all, under
the First Amendment, the Fourteenth Amendment Due Process
Clause, or the Fourteenth Amendment Equal Protection Clause.
The First Amendment generally protects a prisoner's right
to read what he wants to read. In the context of
prisoners' access to sexually explicit material, that
right is not unfettered; it may be restricted without
violating the First Amendment where such restrictions are
reasonably related to legitimate penological interests.
Turner v. Safley, 482 U.S. 78, 89 (1987);
Thornburgh v. Abbott, 490 U.S. 401, 409 (1989). This
is true even for prisoners like Plaintiff, who are sex
offenders. See Brown v. Phillips, 801 F.3d 849,
853-54 (7th Cir. 2015). At this early stage, in the absence
of allegations ...