United States District Court, E.D. Wisconsin
JESSE A. DAUL, Plaintiff,
JOHN DOES, Defendant.
DECISION AND ORDER
ADELMAN UNITED STATES DISTRICT JUDGE.
Daul brings this case pro se under 42 U.S.C. §
1983 alleging that John Does violated his civil rights while
he was incarcerated. This order resolves plaintiff's
motion to proceed without prepayment of the filing fee and
screens his complaint.
Prison Litigation Reform Act (PLRA) applies to this case
because plaintiff was incarcerated when he filed his
complaint. The PLRA gives courts discretion to allow
plaintiffs 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 plaintiff pay an initial partial
currently has eleven cases pending before me. On April 30,
2018, plaintiff filed a letter in at least two of his cases,
asserting that he is unable to pay an initial partial filing
fee. He explained that he is homeless and unemployed and is
not receiving any assistance for food, housing, or
transportation. Based on the information in that letter, I
find that plaintiff has neither the means nor the assets to
pay an initial partial filing fee, so I will waive the
requirement that he pay one. I will grant plaintiff's
motion to proceed without prepayment of the filing fee, but
he must pay the $350 filing fee, as he is able.
law requires that I screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. Id. §
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. § 1915A(b).
general, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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. To state a plausible claim under
§ 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. Milwaukee County, 570
F.3d 824, 827 (7th Cir. 2009).
complaint alleges the following: A property officer took 25
“postmarked and process coded legal mail
envelopes” from plaintiff's legal papers that he
needed to prove a mail-fraud claim that he was not yet ready
to file. The envelopes show that state officials “have
been harassingly and intentionally delaying [plaintiff's]
USPS legal mail at multiple [state prison] facilities.”
Plaintiff's mail is delayed for “days” and
his envelopes are always processed last. Plaintiff also never
received a letter from the Clerk's office that was
docketed in four of his cases. Plaintiff seeks damages from
defendants “for intentionally delaying USPS mail,
mishandling [the Clerk's letter] and confiscating the 25
postmarks (proof of USPS mail fraud) without . . . due
process and within the institution USPS mail handling
process.” Plaintiff's complaint fails to state a
plausible claim for relief based on its allegation that
various state prison institutions received mail for him days
before he received it. See, e.g., Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999); Sizemore
v. Williford, 829 F.2d 608, 610 (7th Cir. 1987)
(“merely alleging an isolated delay or some other
relatively short-term, non content-based disruption in the
delivery of inmate reading materials will not support . . . a
cause of action”). Prison institutions screen and
process incoming mail as a way of ensuring the safety and
wellbeing of the inmates. Thus, ordinary, short delays are
the complaint fails to state a claim based on its allegation
that he did not receive a letter from the Clerk's office
that was docketed in four of his cases. Mere “isolated
instances of loss, ” or even theft, of mail or other
“reading materials” are generally not actionable.
Sizemore, 829 F.2d at 610.
plaintiff may not proceed on a claim that a John Doe property
officer deprived him of his property without due process
because, based on the allegations in the complaint, John
Doe's conduct was contrary to institutional policy and
was, therefore, random and unauthorized. “When a state
official's conduct is random and unauthorized, due
process requires only that an adequate post-deprivation
remedy exists.” Johnson v. Wallich, 578
Fed.Appx. 601, 602 (7th Cir. 2014). Wisconsin provides tort
remedies for people claiming that their property was taken or
damaged by another. See Wis. Stat. § 893.35.
post-deprivation remedies are adequate to redress
plaintiff's loss because, as I have already explained,
plaintiff does not state a claim in connection with the short
delays in his mail being delivered, so he does not need the
envelopes as “proof” of another claim. Also, the
complaint's allegation that logs exist indicating when an
institution received mail and when that mail was delivered
undercuts his argument that he is unable to support his claim
without the envelopes.
reasons discussed above, IT IS ORDERED that
plaintiff's motion for leave to proceed without
prepayment of the filing fee (Docket No. 2) is
IS FURTHER ORDERED that plaintiff must pay the full
filing fee as he is able. Plaintiff should forward payments
to the Clerk of Court, clearly indicating the case name and
number for this action on each payment.
IS FURTHER ORDERED that this action is
DISMISSED, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1), for failure to
state a claim on which relief may be granted. The Clerk of
Court shall enter final judgment accordingly and document