United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Michael Scott Pietila, who is incarcerated at Waupun
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that Defendants
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff’s petition to
proceed without prepayment of the filing fee (in forma
pauperis). (Docket #2). The court is required to screen
complaints brought by prisoners seeking relief against a
governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a).
the Court screens a prisoner complaint only after the
prisoner pays their initial partial filing fee
(“IPFF”). However, in prior actions filed
recently by Plaintiff, he was allowed to proceed without
payment of an IPFF due to his extreme indigence. See,
e.g., Pietila v. Roper et al., No.
17-CV-1588-JPS (E.D. Wis.), (Docket #11). The Court will,
therefore, immediately grant Plaintiff’s motion for
leave to proceed without prepayment of the filing fee. As
explained below, Plaintiff’s action is indisputably
meritless, so the IPFF payment matters little.
court 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. Id. §
1915A(b). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
The court may, therefore, dismiss a claim as frivolous where
it is based on an indisputably meritless legal theory or
where the factual contentions are clearly baseless.
Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for
“frivolous,” “is more usefully construed as
intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109–10 (7th Cir. 2003) (citations omitted).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is
not necessary for the plaintiff to plead specific facts and
his statement need only “give the defendant fair notice
of what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint’s
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. Section 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. Cnty. 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 is obliged to give the
plaintiff’s pro se 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)).
alleges that beginning in April 2017, he was denied soap,
clothing, linen, a toothbrush, and toothpaste for a
weeks-long period. (Docket #1 at 2). He says he asked each
Defendant about receiving those items, either in person or by
letter, but apparently to no avail. Id. Plaintiff
explains that this episode began when he was placed on
“control status” for allegedly spitting on an
officer. Id. Plaintiff was in a state of
“hyper psychosis” and “insanity” at
this time. Id.
concludes his factual allegations with the following
sentences: “My initial complaint was dismissed without
prejudice due to failure to exhaust administrative remedies
which I have now exhausted. They are exhibits A-1 – A-3
accompanying this refiled and amended complaint.”
Id. at 3. Plaintiff has indeed had prior lawsuits
dismissed for failure to exhaust his administrative remedies,
as required by the Prison Litigation Reform Act
(“PLRA”). See Pietila v. Tritt et al.,
No. 17-CV-1586-JPS (E.D. Wis.) (“Tritt
I”), (Docket #30); Pietila v. Westra et
al., No. 17-CV-1587-JPS (E.D. Wis.), (Docket #27).
Though described as a “refiled and amended
complaint,” Plaintiff’s instant pleading does not
indicate which prior case it should be filed in. See
generally (Docket #1) (hereinafter referred to as
appears that the allegations of Tritt II are
potentially related to those of Tritt I. In
Tritt I, Plaintiff alleged that Captain Tritt and
numerous Doe defendants employed cruel and unusual punishment
against him while he was on “control status. Tritt
I, (Docket #14 at 3–4). They did so by denying him
linens, clothes, or other things to keep him warm in the cold
spring months. Id. at 4. They also refused to
provide him hygiene items. Id. Moreover, Plaintiff
was not allowed to sleep on a mattress. Id. Finally,
he was not given toilet paper and so had to wipe himself with
his bare hands. Id. Because the allegations of
Tritt II are less detailed than those of Tritt
I, the Court is not entirely sure that both complaints
cover precisely the same topics. Out of an abundance of
caution, the Court has docketed Tritt II as a
to the merits of the case, Plaintiff is incorrect that he has
exhausted his administrative remedies. This action must
therefore be immediately dismissed on that ground. The Court
quotes from its June 13, 2018 order disposing of Tritt
I to explain the exhaustion requirement and its
interaction with the Wisconsin prison system:
The PLRA establishes that, prior to filing a lawsuit
complaining about prison conditions, a prisoner must exhaust
“such administrative remedies as are
available[.]” 42 U.S.C. § 1997e(a). To do so, the
prisoner must “file complaints and appeals in the
place, and at the time, the prison’s administrative
rules require,” and he must do so precisely in
accordance with those rules; substantial compliance does not
satisfy the PLRA. Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002). . . . Failure to exhaust administrative
remedies is an affirmative defense to be proven by
Defendants. Westefer v. Snyder, 422 F.3d 570, 577
(7th Cir. 2005).
The Wisconsin Department of Corrections maintains an Inmate
Complaint Review System (“ICRS”) to provide a
forum for administrative complaints. Wis. Admin. Code §
DOC 310.04. There are two steps inmates must take to exhaust
their administrative remedies under the ICRS. First, the
inmate must file an offender complaint with the Institution
Complaint Examiner (“ICE”) within fourteen days
of the events giving rise to the complaint. Id.
§§ DOC 310.07(1), 310.09(6). The ICE may reject a
complaint or, before accepting it, can direct the inmate to
“attempt to resolve the issue.” See Id.
§§ DOC 310.08, 310.09(4), 310.11(5). If the
complaint is rejected, the inmate may appeal the rejection to
the appropriate reviewing authority. Id. § DOC
310.11(6).2 If the complaint is not rejected, the ICE issues
a recommendation for disposing of the complaint, either
dismissal or affirmance, to the reviewing authority.
Id. §§ DOC 310.07(2), 310.11. The
reviewing authority may accept or reject the ICE’s
recommendation. Id. § DOC 310.07(3).
Second, if the ICE recommends dismissal and the reviewing
authority accepts it, the inmate may appeal the decision to
the Corrections Complaint Examiner (“CCE”) within
ten days. Id. §§ DOC 310.07(6), 310.13.
The CCE issues a recommendation to the Secretary of the
Department of Corrections, who may accept or reject it.
Id. §§ DOC 310.07(7), 310.13, 310.14. Upon
receiving the Secretary’s decision, or after forty-five
days from the date the Secretary ...