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Wilke v. Lt Montano

United States District Court, E.D. Wisconsin

April 2, 2018

LT. MONTANO, Defendant.



         The plaintiff, who is confined at the Milwaukee County Jail, is representing himself. He filed a complaint alleging that the defendant violated his constitutional rights. This matter comes before the court on plaintiff's petition to proceed without prepayment of the filing fee (in forma pauperis) and to screen the complaint.

         Plaintiff has been assessed and paid an initial partial filing fee of $14.64. See 28 U.S.C. § 1915(b)(1). I will therefore grant his motion to proceed without prepayment of the filing fee. I will collect the rest of the filing fee as explained at the end of this order.

         Standard of Review for Screening Complaint

         The court shall 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, 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 the 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 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).

         In 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.

         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 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)).

         Complaint's Allegations

         Plaintiff sues defendant Lt. Montano, who works at the Milwaukee County Jail, in her individual and official capacities. He alleges that on September 16, 2017, he was placed in segregation for allegedly possessing weapons in violation of jail rules. On September 19, 2017, defendant held a rule violation hearing. Plaintiff was found guilty of possessing weapons and sentenced to twenty-eights days in disciplinary segregation. Plaintiff was then held in segregation an additional twenty-five days as a “max inmate” because of the “serious allegation of possessing weapons.” On November 8, 2017, plaintiff was released from the jail's segregation pod.

         Plaintiff alleges that defendant violated his due process rights at the rule violation hearing because, (1) he did not receive a copy of the rule violation before the hearing; (2) he did not have the opportunity to produce witnesses, review physical evidence, or review the jail's security camera recording to try to prove his innocence at his hearing; and (3) he was not provided with a “Statement of Reasons” after the hearing as to why he was found guilty and why he received the discipline he received, nor was he made aware of any right to appeal the decision.

         On September 21, 2017, plaintiff filed a grievance alleging due process violations at his hearing. The grievance “was ignored.” On September 28, 2017, plaintiff wrote a “Prisoners' Request” in which he sought a response to his grievance. He has not received a response to his grievance or his Prisoner Request.

         Plaintiff seeks injunctive relief ordering defendant to expunge the violation from his disciplinary record. He also seek $53, 000 damages ...

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