United States District Court, E.D. Wisconsin
CODY A. LONG, Plaintiff,
CO POCK, JEREMY WESTRA, SGT. BOSZAK, TONY MELI, and LT. BURNS, Defendants.
Stadtmueller, U.S. District Judge
plaintiff, Cody A. Long, a Wisconsin state prisoner
representing himself, filed a complaint alleging that the
defendants violated his rights under federal law. This matter
is before the Court to screen the plaintiff's amended
complaint. (Docket #17).
case was previously assigned to Magistrate Judge Nancy
Joseph. However, because not all parties have had the
opportunity to consent to magistrate judge jurisdiction, the
case was reassigned to a District Judge for entry of this
order dismissing the case.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. Id. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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). The
plaintiff need not plead specific facts and 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)).
However, a complaint that offers mere “labels and
conclusions” or a “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 that,
accepted as true, “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. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying 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, second, “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) (citing Kramer v. Vill. of N. 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,
case, the plaintiff alleges that the defendants failed to
file paperwork about a fight he had with another inmate on
March 8, 2017. (Docket #17 at 2). After the fight, the
defendants allegedly talked to the plaintiff and the other
inmate. Id. The plaintiff alleges that after he told
the defendants that he planned to file a lawsuit for failure
to protect him, they “brought him to RGU (aka Seg) as
they stripped us in an[d] placed me on TLU for 303.11
Assault.” Id. at 2-3. The plaintiff seeks
monetary relief from the defendants.
liberally, the plaintiff alleges that the defendants
retaliated against him after he threatened to file a lawsuit.
To state a First Amendment claim for retaliation, a plaintiff
must allege that “(1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment activity in the future;
and (3) the First Amendment activity was at least a
motivating factor in the defendants' decision to take the
retaliatory action.” Perez v. Fenoglio, 792
F.3d 768, 783 (7th Cir. 2015) (quoting Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). A prisoner
has a First Amendment right to file a lawsuit or make
grievances about the conditions of his confinement. See
Bridges, 557 F.3d at 551-52; Watkins v. Casper,
599 F.3d 791, 798 (7th Cir. 2010). However, merely
threatening to file a lawsuit or a grievance is not protected
activity. Bridges, 557 F.3d at 555 (“But it
seems implausible that a threat to file a grievance
would itself constitute a First Amendment-protected
grievance.”) (emphasis in original). In this case, the
plaintiff alleges that he told the defendants he was going to
file a lawsuit, not that he filed one. Thus, he has not
satisfied the first prong of a retaliation claim and,
therefore, he fails to state a claim upon which relief can be
IT IS ORDERED that this action be and the
same is hereby DISMISSED with prejudice
pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1) for failure to state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a “strike” under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that a copy of this order be sent
to the officer in charge of the agency where the inmate is
COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3) unless the plaintiff ...