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Smith v. Eckstein

United States District Court, E.D. Wisconsin

June 13, 2018

ANTONIO MARQUES SMITH, Plaintiff,
v.
SCOTT ECKSTEIN, JOHN KIND, JEAN LUTSEY, CAPTAIN BRANDT, CATHY FRANCOIS, JON LITSCHER, CATHY JESS, JIM SCHWOCHERT, AND STEVE SCHMIDT, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 5), SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, AND DISMISSING CASE FOR FAILURE TO STATE A CLAIM

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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. 5. This order resolves the motion and screens the complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee0

          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 pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On May 15, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $17.17. Dkt. No. 4. 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.

         II. Screening the Plaintiff's 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 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 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, 106 (1976)).

         A. The Plaintiff's Allegations

         The plaintiff is incarcerated at the Green Bay Correctional Institution (GBCI). Dkt. No. 1 at 1. He has sued Warden Scott Eckstein, Security Director John Kind, Health Service Manager Jean Lutsey, Captain Brandt, Unit Manager Cathy Francois, Clinician Steve Schmidt, Wisconsin Department of Corrections (DOC) Secretary Jon Litscher, DOC Deputy Secretary Cathy Jess (sued as “Kathy Jess”) and DOC Administrator Jim Schwochert. Id. at 1-3.

         The plaintiff alleges that on September 21, 2016, he was incarcerated at the Waupun Correctional Institution; he says that he was being considered for placement in administrative confinement, but that three people concluded “at the time of the hearing no need to place” him into administrative confinement. Id. at 3. On September 30, 2016, the plaintiff arrived GBCI. Id. at 4. When he arrived, the transporting officer told Captain Stevens (the supervisor, who is not a defendant) that the plaintiff was “general population status;” the plaintiff says that was wearing green clothing. Id. Lieutenant Swiekatowski (who is not a defendant) subsequently placed a temporary lock-up notice on the plaintiff pending administrative confinement review. Id. Defendant Warden Eckstein ordered the temporary lock-up placement. Id. at 8.

         The plaintiff asserts that the reason he was moved from Waupun to GBCI was because an officer who was a “purported family member plaintiff's alleged victim” had placed an “SPN” on the plaintiff; he does not explain what an “SPN” is. Id. at 4. He also says that while he was at Waupun, he was in general population except for a brief time in segregation while he was awaiting a lateral transfer to another institution. Id.

         On November 30, 2016, defendant Captain Brandt submitted a recommendation for administrative confinement which contained “the same identical information that had already been considered by Waupun Correctional Institution Administrative Confinement Review Committee concluding that no administrative confinement placement was necessary.” Id. Defendant Kind reviewed the plaintiff's ...


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