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Franklin v. Smith

United States District Court, E.D. Wisconsin

January 23, 2019

GLEN FRANKLIN, Plaintiff,
v.
WARDEN JUDY SMITH, SGT. RUCINSKI, CO BOOKER, and JOHN DOE, Defendants.

          ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         Plaintiff Glen Franklin, a pro se inmate at Oshkosh Correctional Institution, filed a complaint under 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights by opening his legal mail before giving it to him. This matter is before the court on Franklin's motion to proceed without prepayment of the filing fee (ECF No. 2) and for screening of his complaint (ECF No. 1).

         The court has jurisdiction to resolve Franklin's motion and to screen his complaint in light of his consent to the full jurisdiction of a magistrate judge and the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court.

         1. Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) gives courts discretion to allow prisoners 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 prisoner pay an initial partial filing fee. On January 14, 2019, the court ordered Franklin to pay an initial partial filing fee of $10.11. (ECF No. 5.) Franklin paid that fee on January 18, 2019. As such, the court will grant his motion for leave to proceed without prepaying the filing fee. Franklin will be required to pay the remainder of the $350 filing fee over time in the manner described at the end of this Order.

         2. Screening of the Complaint

         The court is required 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). To state a cognizable claim under the federal notice pleading system, a 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). 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 the 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 for relief 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 deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North 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 a 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)).

         2.1 Allegations in the Complaint

         Franklin alleges that on December 3, 2018, when he went to retrieve his mail from CO Booker, he discovered that his “legal mail from the courts [] had been open[ed] and taped before [he] received it.” (ECF No. 1 at 2-3.) He states he spoke with Sgt Rucinski about it and filed inmate complaint number OSCI-2018-24913. (Id. at 3.) He says his inmate complaint was later affirmed.

         Franklin seeks injunctive relief and compensatory and punitive damages.

         2.2 Analysis

         “Inmates have a First Amendment right both to send and receive mail, but that right does not preclude prison officials from examining mail to ensure that it does not contain contraband.” Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005) (citations omitted). A prison official's generally unfettered ability to review an inmate's mail is, however, abridged when it comes to an inmate's legal mail. Id. When a prison receives a letter for an inmate that is marked with an attorney's name or some type of indication that the letter is legal mail, “officials potentially violate the inmate's rights if they open the letter outside of the inmate's presence.” Id. (citations omitted).

         As alleged, Franklin has adequately asserted a First Amendment rights violation regarding his opened legal mail against the John Doe mailroom officers. Indeed, the allegations indicate that someone in the mail room opened his legal mail outside his presence. However, Franklin fails to sufficiently allege that Warden Judy Smith, Sgt Rucinski, or CO Booker were involved in the alleged act. Under section 1983, an individual can be liable only if that individual is personally responsible for a constitutional deprivation. See Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 614-15 (7th Cir. 2002); George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007) (“Only persons who cause or participate in the violations are responsible.”). There is no supervisory liability, collective liability or vicarious liability under 42 U.S.C. § 1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). Franklin makes no direct allegations against Warden Smith. And ...


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