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Kemper v. Piech

United States District Court, E.D. Wisconsin

September 19, 2017

TERRY C. KEMPER, Plaintiff,



         Plaintiff, 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.

         Notwithstanding 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).

         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. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         Plaintiff's 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 3-4.

         Defendants, 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.

         According 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.[1]

         Screening 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.

         Second, 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).

         On this 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.

         With 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).

         In this 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 ...

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