United States District Court, E.D. Wisconsin
DAVID W. BENTLEY, Plaintiff,
MICHAEL BAENEN, PETER ERICKSON, NANCY IRIZARY, CO. FRIPPER, CAPT. LESAC, LT. STEVENS, and DON STRAHOTA, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
David W. Bentley, a Wisconsin state prisoner who is
representing himself, filed a civil rights under 42 U.S.C.
§ 1983, along with a motion for leave to proceed without
prepayment of the filing fee (in forma pauperis).
Plaintiff was assessed and paid an initial partial filing fee
of $42.58. This matter comes before the court for screening
of the complaint.
case was previously assigned to Magistrate Judge William E.
Duffin. 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
Prison Litigation Reform Act ("PLRA") requires
federal courts to screen complaints brought by inmates
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, " fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b).
state a claim under the federal notice pleading system, a
plaintiff must provide a "short and plain statement of
the claim showing that [he] is entitled to relief[.]"
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts and need only provide "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)). 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
complaint must contain sufficient factual matter, that when
accepted as true, "state[s] a claim to relief 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. (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).
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Iqbal, 556 U.S. at 679. First, the court
determines whether a plaintiff's legal conclusions are
supported by factual allegations. Id. Legal
conclusions not support by facts "are not entitled to
the assumption of truth." Id. Second, the court
determines whether the well-pleaded factual allegations
"plausibly give rise to an entitlement to relief."
Id. The court gives 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,
2011, Plaintiff was an inmate at the Green Bay Correctional
Institution ("GBCI"). (Docket #1 at ¶¶
1-2). He started having a sexual relationship with Defendant
CO. Fripper. Id. at ¶ 3. Plaintiff explains
that "he was a willing party because of being in prison
for so long what man wouldn't." Id. at
¶ 16. Defendants Michael Baenen, Security Director Peter
Erickson, Captain Lesac, and Lieutenant Stevens were all
aware of the sexual relationship and allowed it to continue.
Id. at ¶¶ 4-6, 25.
November 26, 2011, Stevens and another officer questioned
Plaintiff about the sexual relationship. Id. at
¶¶ 7-8. Stevens told Plaintiff that they knew about
the sexual relationship because they had over 9, 000 calls
recorded. Id. at ¶ 8. The other officer in the
room said that CO. Fripper admitted to everything and they
had just dropped her off at the Brown County Jail.
Id. at ¶ 9.
same day, on November 28, 2011, Plaintiff was transferred to
Waupun Correctional Institution ("WCI").
Id. at ¶¶ 11-12. Upon arrival, WCI
officers interviewed Plaintiff again about the sexual
relationship. Id. at 114. Plaintiff states that it
is a violation of DAI policy for anyone other than the
warden, Defendant Don Strahota for WCI, to investigate sexual
misconduct. Id. at ¶¶ 21-23. Strahota did
not investigate the sexual relationship once Plaintiff
arrived at WCI, even though he knew about it. Id. at
¶ 26. Defendant Nancy Irizary, the victim service
coordinator at WCI, also did not investigate the sexual
relationship. Id. at ¶ 27. Plaintiff states
that Irizary "had a[n] obligation to speak with [him]
regardless [of] if he wrote her or not to see if he needed
any assistance." Id.
further notes that prison staff at both GBCI and WCI
explained to him that he is a victim and could not consent
under the Prison Rape Elimination Act ("PREA") or
Wisconsin criminal law. Id. at ¶¶ 10, 15-
16, 23. A few months later, CO. Fripper was criminally
charged in Brown County circuit court. Id. at
state a claim for relief under 42 U.S.C. § 1983,
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. Cnty. 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).
cannot proceed with this lawsuit for multiple independent
reasons. First, Plaintiff did not bring suit within the
applicable statute of limitations. Section 1983 does not have
an internal statute of limitations. Instead, federal courts
look to the "general or residual statute of limitations
governing personal injury actions" as provided for by
the state where the injury occurred. Gray v. Lacke,
885 F.2d 399, 407 (7th Cir. 1989). In Wisconsin, the
limitations period is six years. Kennedy v.
Huibregtse, 831 F.3d 441, 442 (7th Cir. 2016); Wis.Stat.
§ 893.53. Plaintiff indicates that the events described
above happened in 2011 at GBCI. He identifies the last date
of injury as November 26, 2011, when he was transferred to
WCI. This case was not filed until December 27, 2017, about a
month past the statute of limitations.
Plaintiff fails to identify any injury of constitutional
magnitude. The crux of Plaintiff's claim is that he was a
"willing party" in a sexual relationship but that
he could not legally "consent" under the PREA or
Wisconsin criminal law. The PRE A does not create a private
cause of action in federal court, thus, Plaintiff must allege
an independent constitutional violation. See Gonzaga
Univ. v. Doe,536 U.S. 273, 283 (2002) ("We now
reject the notion that our cases permit anything short of an
unambiguously conferred right to support a cause of action