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Hietpas v. Buhs

United States District Court, E.D. Wisconsin

November 30, 2017

BRITTNEY R. HIETPAS and MICHAEL T. WINIUS, Plaintiffs,
v.
LISA BUHS, K. PAWLAK, K. KAESERMAN, and C. STEINICH, Defendants.

          WILLIAM E. DUFFIN U.S. Magistrate Judge

         Plaintiffs Michael T. Winius, who is incarcerated at Racine Correctional Institution, and his daughter, Brittney R. Hietpas, filed a complaint under 42 U.S.C. § 1983, alleging that their constitutional rights were violated. The Prison Litigation Reform Act (PLRA) applies to this case because Winius was incarcerated when he and his daughter filed the complaint. This order resolves Hietpas's motion for leave to proceed without prepayment of the filing fee and screens the complaint.

         Motion for Leave to Proceed without Prepayment of the Filing Fee

         On October 24, 2017, Hietpas filed a motion for leave to proceed without prepayment of the filing fee. On November 6, 2017, Winius paid the $400 filing fee. When multiple non-prisoner plaintiffs jointly file a complaint, they need only pay one filing fee per case; however, when multiple prisoner plaintiffs jointly file a complaint, each prisoner plaintiff must pay the full filing fee. See Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004). Given that Winius, who is incarcerated, paid the full filing fee, the Court finds that Hietpas, who is not incarcerated, may join as a plaintiff without paying an additional filing fee. As such, the court will deny her motion as moot.

         Screening of the 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). 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. 28 U.S.C. § 1915A(b).

         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 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) (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 the 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)).

         The Complaint's Allegations

         Plaintiffs allege that, while incarcerated at Racine Correctional Institution, Winius was admitted to a program called Beacon. Beacon is a two-year residential sex offender program for convicted sex offenders. Plaintiffs allege that upon entry to the program Winius signed various entrance forms, one of which required him to stop all contact with Hietpas until she turned eighteen years old. Hietpas, who had been on Winius's visitor list since June 21, 1999, was taken off of his visitor list on May 29, 2015. Hietpas was seventeen years old and had been on Winius's visitor list for nearly sixteen years.

         Winius asserts that defendants Dr. Lisa Buhs, K. Pawlak, and C. Steinich assured him that Hietpas would be placed back on his visitor list once she turned eighteen on November 26, 2015. It is not entirely clear from the complaint, but it appears that, while Hietpas was not immediately placed on Winius's visitor list when she turned eighteen, Winius was permitted to communicate with her via letters and telephone calls.

         On January 27, 2016, plaintiffs explain that they were talking on the telephone. Plaintiffs were on speaker phone and other adults were on the call. Plaintiffs allege that the call participants began joking about prison sexuality as depicted in the movies. Winius allegedly joked about masturbating and the size of his penis.

         A couple of days later, at a regularly scheduled appointment, Winius talked to Dr. Buhs about the telephone conversation and asked for advice on how to deal with similar situations should they arise again. About a week later, plaintiffs allege that Dr. Buhs, Pawlak, Kaeserman, and Steinich issued Winius a Beacon Program Written Warning. The warning summarized the call and stated that Winius had minimized his behavior in the situation. As a sanction Winius was ordered to have no contact with Hietpas for at least six months.

         Plaintiffs allege that Winius did not violate any rule or administrative policy, he did not receive a conduct report, and no hearing was held prior to the sanction being administered. Winius alleges that he disputed that a warning was necessary and he repeatedly asked that he be allowed to contact Hietpas. According to plaintiffs, defendants threatened Winius that ...


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