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Daul v. Does

United States District Court, E.D. Wisconsin

November 2, 2017




         Plaintiff Jesse Daul, a Wisconsin state prisoner who is representing himself, filed a complaint alleging that defendants violated his civil rights. This case was originally assigned to U.S. Magistrate Judge William Duffin; however, because not all parties have had the opportunity to consent to magistrate judge jurisdiction, the case was randomly reassigned to this U.S. District Court judge for the limited purpose of screening the complaint. The case will be returned to Judge Duffin after entry of this order.

         This matter is before the Court on plaintiff's motion to proceed without prepayment of the civil case filing fee (ECF No. 2), his motion for injunctive relief (ECF No. 7), his motion for an extension of time for service (ECF No. 13), his motion for leave to refile his consent to magistrate judge form (ECF No. 15), his motion to file an amended complaint (ECF No. 17), his second motion to file his amended complaint (ECF No. 18), and for screening of his second amended complaint (ECF No. 18-1).

         Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff was incarcerated when he filed his complaint. The PLRA gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. §1915. One of those requirements is that the prisoner pay an initial partial filing fee. On April 12, 2017, Judge Duffin waived plaintiff's obligation to pay an initial partial filing fee after finding that he could not afford to do so. The Court will grant plaintiff's motion to proceed without prepayment of the full filing fee; he is required to pay the $350 filing fee over time in the manner explained at the end of this Order.

         Plaintiff's Motion for Injunctive Relief

         Plaintiff filed a motion for injunctive relief. It is not entirely clear what relief plaintiff is seeking; however, it appears that he is contesting the validity of certain Brown County Jail policies regarding the provision of legal supplies (the Jail's policy to provide pencils rather than pens, to limit free envelopes to one per week, refusing to provide free copies for certain documents) and the Jail's grievance procedures (requiring inmates to grieve through the chain of command).

         The Supreme Court has repeatedly made clear that prison officials have “broad administrative and discretionary authority over the institutions they manage . . . .” Hewitt v. Helms, 459 U.S. 460, 467 (1983). These types of administrative policies about which plaintiff complains are the very type with which the Court will not interfere, especially because it is clear from plaintiff's filings that, despite these policies, he is able to freely communicate with the Court. The Court will deny this motion.

         Plaintiff's Motions to Amend his Complaint

         Plaintiff filed his original complaint on April 10, 2017. On August 28, 2017, he filed a motion to amend his complaint along with a proposed amended complaint. About two weeks later, he filed another motion to amend his complaint along with a proposed second amended complaint. The Court will allow plaintiff to amend his complaint as proposed in his second amended complaint. The clerk's office will docket the document located at ECF No. 18-1 as the operative complaint in this case.

         Screening of the Second Amended Complaint

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). To state a cognizable claim under the federal notice pleading system, a 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). To state a claim, a complaint must contain sufficient factual matter, accepted as true, "that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. (citing Twombly, 550 U.S. at 556).

         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 her 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) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give a 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)).

         Allegations in the Complaint

         Plaintiff alleges that, on March 16, 2017, defendant M. Vetsch, a correctional officer at the Brown County Jail, moved plaintiff to temporary lock-up (TLU) because plaintiff asked to be placed in observation status in order “to prevent any incident in which he could harm someone else.” (ECF No. 18-1 at 2.) Plaintiff clarifies that he did not indicate that he was suicidal. Although not entirely clear, it appears that, following plaintiff's request, Vetsch wrote plaintiff a conduct report because he “perceived a threat of imminent danger.” (Id.) Plaintiff alleges that Vetsch lacked the authority to move him to TLU and that Vetsch threatened further discipline for disobeying a direct order if he did not move to TLU.

         Defendant N. Cieslewicz was working as the Housing Security Supervisor that day. According to plaintiff, Cieslewicz listened to plaintiff's “frustrations with the legal supplies, current feelings, comments to Vetsch and also his grounds/reasons for making the request.” (Id.) Cieslewicz allegedly told plaintiff that he did not perceive plaintiff's comments to Vetsch as threatening, and he understood why plaintiff was requesting to be placed in ...

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