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Collins Bey v. Wall

United States District Court, E.D. Wisconsin

April 4, 2018




         Robert Collins Bey, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that the defendants violated his civil rights. Not all parties have had the opportunity to fully consent to magistrate judge jurisdiction under 28 U.S.C. § 636(c). Nonetheless, the court has jurisdiction to screen the complaint under the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court. I will address Collins' motions to proceed without prepayment of the filing fee, his motion to waive the initial partial filing fee, and his motion to appoint counsel, and screen his complaint.

         Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that the prisoner pay an initial partial filing fee.

         On March 3, 2018, I ordered Collins to pay an initial partial filing fee of $0.79. About a week later, he filed a motion asking me to waive that fee. He explains that his very limited income of $8.00 per month is immediately withdrawn from his account to satisfy debts he owes. Collins' trust account statement confirms that he has neither the means nor the assets to pay the initial partial filing fee, so I will grant his motion to waive that fee. Collins must pay the entire $350 filing fee over time in the manner explained at the end of this order.

         Screening of the Complaint

         Federal law requires that I 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 claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To proceed 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 defendant was 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). I will give a pro se plaintiff's 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)).

         Allegations in the Complaint

         Collins alleges that the Wisconsin prison system had an unwritten policy for more than thirty-five years of providing indigent prisoners with free writing materials, including two sheets of paper, envelopes, and postage. (Docket # 1 at 8.) On December 12, 2014, defendant Carrie Sutter sent out a memorandum to all inmates, which stated: “In accordance with the revisions set forth in the DOC 303, writing materials and postage will only be provided to indigent inmates in DS upon request. The writing materials can only be used for legal and/or CCE purposes. The materials may not be used for personal mail.” (Id.) Collins asserts that defendants' misinterpretation and misapplication of the statute interfered with his constitutional right to free speech. Collins explains that he filed grievances about the change in policy and complained to his social worker and to unit officers to no avail. Collins asserts that, as a result of the change in policy, he was unable to correspond with this family for thirteen months.

         On January 25, 2016, defendant Cathy Jess sent a memorandum to all staff and inmates, which stated: “DAI will provide one stamped, embossed, or metered envelope and two pieces of paper to indigent inmates in restrictive housing on the 1st and 15th of each month, effective February 1, 2016. The inmate may use these materials to correspond to members of the public or another inmate for any purpose, legal or otherwise.” (Id. at 20.)

         Collins also alleges that defendants prevented him from communicating with his family and friends via telephone. He explains that, due to a change in the service provider used by the prison, he was no longer able to place collect calls to people unless ...

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