United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
February 28, 2017, the plaintiff filed a complaint under 42
U.S.C. §1983, alleging that the defendants had violated
his constitutional rights. Dkt. No. 1. The plaintiff also
filed a motion for leave to proceed without prepayment of the
filing fee. Dkt. No. 2. This decision resolves the
plaintiff's motion and screens his complaint.
Motion for Leave to Proceed without Prepayment of the Filing
Fee (Dkt. No. 2)
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. The PLRA allows a court to
give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as
he meets certain conditions. One of those conditions is that
the plaintiff must pay an initial partial filing fee. 28
March 3, 2017, U.S. Magistrate Judge Nancy Joseph (the judge
assigned to the case at that time) ordered the plaintiff to
pay an initial partial filing fee of $1.45. Dkt. No. 5. On
March 7, 2017, the clerk's office reassigned the case to
this court. On May 15, 2017, the court received from the
plaintiff the initial partial filing fee. Accordingly, the
court will grant the plaintiff's motion to proceed
without prepayment of the filing fee, and will require him to
pay the remainder of the filing fee over time as explained at
the end of this decision.
Screening the Plaintiffs Complaint
requires the court 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).
The court must dismiss a complaint if the plaintiff raises
claims that are legally "frivolous, 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).
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).
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. Ctv. 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
gives 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,
The Plaintiffs Allegations
the relevant period, the plaintiff was an inmate at Kettle
Moraine Correctional Institution; he worked as a first shift
unit 6 bathroom worker. Dkt. No. 1 at 2-3. The defendants all
were employees of the Wisconsin Department of Corrections and
worked at Kettle Moraine. Id.
April 4, 2015, defendant Sgt. Gens was the third shift
sergeant working on unit 6. Id. at 3. At
approximately 5:50 a.m., the plaintiff, who is Muslim, headed
to the unit 6 bathroom to perform Wudu. Id. at 3.
Wudu is a purification ritual performed before prayer; it is
practiced by Muslims and is a recognized religious practice
at Kettle Moraine. Id.
Kettle Moraine handbook states, "after dayroom closes at
night until 6:00 a.m., the bathroom will be open for toilet
and/or urinal use only. Sinks may be used for hand washing
only. All other personal hygiene must be completed prior to
the dayroom closing. Exceptions will be made for early work
duty or religious reasons." Id.
plaintiff got to the bathroom door, Gens asked him why he was
using the bathroom before 6:00 a.m. Id. The
plaintiff gave two reasons: he needed to perform Wudu and he
needed to get ready for work. Id. Gens told the
plaintiff that he was too late to perform Wudu; he said that
the plaintiff would need to get up before Fajr prayer, which
started at 5:06 a.m., to perform Wudu. Id. at 4. He
also told the plaintiff that "bathroom work duty is not
early morning work duty." Id.
plaintiff responded by explaining to Gen the KM CI policy
allowing an inmate to use a bathroom prior to 6:00 a.m. for
work duty or religious reasons. Id. He also showed
Gens an inmate complaint examiner ("ICE") report
that he had received in response to an inmate complaint the
plaintiff had filed in 2013. Id. The ICE report
affirmed that Muslims were allowed to get up up to thirty
minutes before sunrise to perform Wudu. Id. The
plaintiff asserts that sunrise was at 6:28 a.m. on April 4,
2015, so he had until 5:58 a.m. to perform Wudu.
Id., Gens ordered the plaintiff to return to his
cell. Id. Because Muslims are required to perform
Wudu prayer, the plaintiff went into the unit 6 bathroom to
do so. Id. When the plaintiff came out of the
bathroom, Gens told the him that Gens had written the
plaintiff an adult conduct report for disobeying orders and
disruptive conduct. Id. Gens asked if the plaintiff
wanted to take a summary disposition of losing five days of
common area privileges; the plaintiff refused, and asked to
see a supervisor (informally known as a white shirt).
Id. The plaintiff believed that Gens had written him
a conduct report to harass him and to retaliate against him
for practicing his religion. Id. The plaintiff was
not given the opportunity to speak with a white shirt, but he
was allowed to make a brief statement to be written up by
another sergeant. Id. The plaintiff again provided
the information from the ICE report, as well as the ICE
report number so that the hearing officer could find it, and
could review the policy. Id.
April 4, 2015, defendant Captain Berg was the hearing officer who
reviewed the plaintiff's conduct report. Id.
Berg found the plaintiff guilty of disobeying orders and
disruptive conduct. Id. at 5. Berg issued the