United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 6),
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, AND DENYING
PLAINTIFF'S ORDER TO SHOW CAUSE AND TEMPORARY EMERGENCY
RESTRAINING ORDER (DKT. NO. 9)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, a Wisconsin state prisoner who is representing
himself, filed this lawsuit under 42 U.S.C. §1983, dkt.
no. 1, along with a motion for leave to proceed without
prepayment of the filing fee, dkt. no. 6. He also filed a
motion asking the court to order the defendants to show cause
why the court should not issue a temporary restraining order.
Dkt. No. 9. This order resolves the motions and screens the
Motion for Leave to Proceed without Prepayment of the Filing
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 pay an initial partial filing fee. 28 U.S.C.
15, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $17.17. Dkt. No. 5. The plaintiff paid
that fee on June 5, 2017. Accordingly, the court will grant
the plaintiff's motion. The court will require the
plaintiff to pay the remainder of the filing fee over time as
set forth at the end of this decision.
Screening the Plaintiff's 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 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).
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).
state a claim 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. Cty. 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 Plaintiff's Allegations
plaintiff is incarcerated at the Green Bay Correctional
Institution (GBCI). Dkt. No. 1 at 1. On November 15, 2016,
the plaintiff had a court hearing in Milwaukee County Circuit
Court, relating to criminal charges he was facing.
Id. at 3. At the hearing, the prosecutor informed
the judge that the prosecutor had received an email from GBCI
concerning mail that the plaintiff had written to one of his
attorneys in his criminal case. Id. The prosecutor
told the court that he didn't open the plaintiff's
letter, because it was privileged correspondence between the
plaintiff and his attorney. Id. at 4. The prosecutor
stated that he did not know why GBCI staff had opened the
envelope, read the letter and forwarded it to the prosecutor,
but he told the judge that he thought it appropriate to tell
the court about it. Id. The plaintiff says that the
judge “was clear in his ruling and order that the
actions of GBCI mailroom staff and administration had
violated [the plaintiff's] First Amendment
attorney/client privileged communication right.”
Id. The judge commended the prosecutor for not
reading the letter, and he directed the prosecutor to delete
the email. Id. The judge added that he was
“very disturbed” by the actions of the GBCI
the court hearing, the plaintiff wrote to defendants Warden
Eckstein, Deputy Warden Schueler and Security Director Kind.
Id. He asked them for the name of the person who
opened his legal mail, as well as the identity of the person
who'd emailed it to the prosecutor and the person
who'd authorized all of this, but they refused to tell
him. Id. at 5. He also asked whether any other
privileged communications had been opened or read; the
defendants “refused to answer” his questions.
November 29, 2016, the plaintiff filed an inmate complaint
about the incident. Id. at 5. Defendant Kind
responded that the issue had been addressed with the staff
involved, and the complaint was dismissed (because it
allegedly had been addressed). Id. Warden Eckstein
approved the dismissal of the complaint. Id. The
plaintiff filed an appeal to the corrections complaint
examiner, who recommended dismissal of the appeal.
Id. at 5-6.
plaintiff states that defendant Sgt. Siagon, who oversees the
mailroom department, can't authorize a mailroom officer
to open an inmate's mail to his attorney. Id. at
6. The plaintiff thinks that defendants Captain Baumann,
Security Director Kind and Deputy Warden Schueler each have
the authority to direct staff to open outgoing mail from an
inmate to his lawyer. Id. He also believes that
Captain Steven, who is the supervising captain of the
mailroom and an investigator supervisor, likely played a
significant role in opening ...