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Little v. Gens

United States District Court, E.D. Wisconsin

May 14, 2018




         On 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.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee (Dkt. No. 2)

         The 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 U.S.C. §1915(b).

         On 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.

         II. Screening the Plaintiffs Complaint

         The law 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).

         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. 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, 106 (1976)).

         A. The Plaintiffs Allegations

         During 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.

         On 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.

         The 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.

         As the 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[1] 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.

         The 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.

         On April 4, 2015, defendant Captain Berg[2] 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 ...

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