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Le Bourgeois v. Institution Correctional Officer Wolf

United States District Court, E.D. Wisconsin

March 20, 2018




         Plaintiff Djuan Dontize Le Bourgeois is a pro se prisoner at Waupun Correctional Institution. He filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his First, Fourth, Fourteenth, and Fifth Amendment rights when they searched his cell, seized his property including a religious book, and destroyed it in retaliation for his not incriminating himself. (Docket No. 1.) The plaintiff also filed a motion to proceed without prepayment of the filing fee (in forma pauperis). (Docket No. 2.) This order resolves plaintiff's motion and screens his complaint.

         Plaintiff has been assessed and paid an initial partial filing fee of $6.93. See 28 U.S.C. § 1915(b)(1). Therefore, I will grant his motion to proceed without prepayment of the filing fee.

         Turning to plaintiff's complaint, I am 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). I 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, 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 plaintiff to 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 Atlantic 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, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when [] plaintiff pleads factual content that allows the court to draw the reasonable inference that [] 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).

         In considering whether a complaint states a claim, I 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.

         To 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 caused by defendants acting under the 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). I am obliged to give 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)).


         Plaintiff alleges the following facts. On June 5, 2015, he and his cellmate were placed in a holding cell by defendants Sergeant Price and Institutional Correctional Officer Wolf while Price and Wolf searched their cell. After the search, plaintiff and his cellmate were called to the “front” to talk with Price and Wolf. Docket No. 1 ¶ 10. When they arrived, they saw several items that had been taken from their cell including the following that belonged to plaintiff: magazines, two books (one of which was a religious book), a fan, a foot tub, a mirror, hobby supplies, two boxes of sugar, and a pair of headphones.

         Price and Wolf began questioning plaintiff and his cellmate about whether they were making “Hooch.”[1] Docket No. 1 ¶ 12. Specifically, Price asked plaintiff about a ziplock bag found in plaintiff's snack bag that contained dough. Plaintiff stated that he had never seen the ziplock bag of dough before. Price then stated,

Just admit that you were going to make hooch. I can't write you a major conduct report, because you don't have any hooch, even if you admit it. But I can write you a minor and make it look like you were trying to make hooch. But if you tell me you were, I won't write you a conduct report at all. And even if you do tell me you were, I still cannot write you a conduct report, because there is no one to verify my statement.

Docket No. 1 ¶ 17. Plaintiff denied the accusation.

         Wolf questioned plaintiff and his cellmate about the property on the table. Plaintiff stated which items were his. Only plaintiff's mirror was returned to him without its scratch resistant covering. Price told plaintiff that “he could not prove [plaintiff] was making hooch, but that he could make it look like it, and unless [] plaintiff was willing to comply with his wishes and just admit to manufacturing hooch, [Price] would hereby destroy [] plaintiff's property.” Docket No. 1 ¶ 22. Plaintiff did not comply.

         Plaintiff requested a property slip from Price for the items that had been seized from his cell. Price denied the request.

         Wolf resumed questioning plaintiff about the items. Wolf insinuated that both plaintiff and his cellmate were making hooch. Wolf told plaintiff that plaintiff had to either admit to making hooch or plaintiff would receive a conduct report. Plaintiff denied the allegation. Wolf then stated, “I'm going to make it look like you were making hooch.” Docket No. 1 ¶ 43. Plaintiff and his cellmate were sent back to their cell.

         On June 6, 2015, right before dinner, plaintiff again asked Price for a property slip for his items. Price responded no.

         While in route to the “chow hall, ” plaintiff saw defendant Lieutenant Larson and asked what was going on with his property. Docket No. 1 ¶ 47. Larson informed plaintiff that he would talk with Price about it.

         Later when plaintiff saw Larson again, Larson said he has spoken to Price. He stated that plaintiff would have to tell Price what he wanted to hear. Otherwise, plaintiff would get a conduct report, Larson would find him guilty, and Larson would destroy plaintiff's property.

         When plaintiff saw Price later that day, Price asked plaintiff if there was something plaintiff wanted to tell him. ...

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