United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE
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).
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.
Motion to Proceed without Prepayment of the Filing
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.
Screening of the Complaint
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).
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)).
Allegations in the Complaint
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.
seeks injunctive relief and compensatory and punitive
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).
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.