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West v. Baumann

United States District Court, E.D. Wisconsin

January 31, 2019

RUFUS WEST, Plaintiff,
v.
CAPT. BAUMANN, CAPT. STEVENS, LT. SWIEKATOWSKI, SECURITY DIRECTOR JOHN KIND, WARDEN SCOTT ECKSTEIN, and CINDY O'DONNELL, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), DENYING PLAINTIFF'S MOTION TO PAY FILING FEES OUT OF RELEASE ACCOUNT (DKT. NO. 3), SCREENING COMPLAINT, AND DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT

          HON. PAMELA PEPPER United States District Judge

         Plaintiff Rufus West, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. This decision resolves the plaintiff's motion for leave to proceed without prepaying filing fee, dkt. no. 2, and his motion to pay filing fees out his release account, dkt. no. 3. The court also screens the complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee (Dkt. No. 2)

         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. That law allows a court to give an incarcerated plaintiff the ability to proceed with his case without prepaying the civil case filing fee, if he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.

         On August 17, 2018, the court ordered the plaintiff to pay an initial partial filing fee of $26.48. Dkt. No. 6. The court received that fee on August 30, 2018. The the court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee, and will order him to pay the remainder of the filing fee over time in the manner explained at the end of this order.

         II. Motion to Pay Fees Out of Release Account (Dkt. No. 3)

         When he filed his motion for leave to proceed without prepaying the filing fee, the plaintiff also filed a motion asking the court to allow him to pay fees out of his release account. Dkt. No. 3. He stated that he didn't have enough money in his regular account to pay the filing fee, but that he did have enough money in his release account. Id. The plaintiff also asked that if the court did not allow him to pay the full filing fee from his release account, he would like to pay the initial partial filing fee from his release account. Id. On the same day it received this motion, the court issued an order assessing the plaintiff an initial partial filing fee which, as stated above, he has paid. Thus, the plaintiff's request as it relates to payment of the initial partial filing fee from his release account is moot.

         Although a court may can order a prison to allow an inmate to use funds from his release account to pay the initial partial filing fee, the PLRA does not require the court to allow an inmate to use release account funds to pay the balance of the filing fee. See 28 U.S.C. §1915(b). Once a plaintiff has paid the initial partial filing fee, the PLRA requires the inmate to pay the balance by making payments equal to “twenty percent of the preceding month's income credited to the prisoner's account.” 28 U.S.C. §1915(b)(2). “Nothing in this language can be interpreted as congressional intent that prisoners deplete savings or release account balances in order to pay off their filing fee debts.” Carter v. Bennett, 399 F.Supp.2d 936, 937 (W.D. Wis. 2005). This makes sense. “The purpose of . . . release accounts is to ensure ‘that the inmate has sufficient funds when released from the institution to purchase release clothing, out-of-state transportation, and other items and services needed upon release.” Doty v. Doyle, 182 F.Supp.2d 750, 751 (E.D. Wis. 2002) (quoting §DOC 309.02(18). If an inmate could use his release account to pay $350 filing fees for filing federal lawsuits, it would defeat the purpose of the release account for many inmates. Initial partial filing fees are small amounts, usually not enough to deplete a release account. But $350 would make a serious dent in, if not deplete, an inmate's release account balance. Given that, the court will deny the plaintiff's request to pay the balance of the $350 filing fee from his release account. He can pay it over time as prescribed by the PLRA.

         III. Screening the Plaintiff's Complaint

         A. Federal Screening Standard

         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) someone deprived him of a right secured by the Constitution or laws of the United States; and 2) whoever deprived him of that right 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)).

         B. The Plaintiff's Allegations

         The plaintiff is incarcerated at the Green Bay Correctional Institution. Dkt. No. 1 at 1. He is suing Captain Baumann, Captain Stevens, Lieutenant Swiekatowksi, Security Director John Kind and Warden Scott Eckstein, all of whom work at Green Bay. Id. The plaintiff also sues Cindy O'Donnell, who allegedly was the Wisconsin Department of Corrections' (DOC) security designee at the time of the events he describes. Id. at 2. The plaintiff claims that the defendants retaliated against him after he complained that the DOC was not following a settlement agreement it entered into in a federal case the plaintiff litigated in the Western District of Wisconsin.

         1. Settlement Agreement

         The plaintiff alleges that on June 27, 2016, he entered into a settlement agreement with the State of Wisconsin, the DOC and agents of those entities in his federal case, West v. Grams, Case No. 11-cv-687-slc (W.D. Wis.). Dkt. No. 1 at 3. According to the plaintiff, as part of the settlement agreement, the defendants agreed that regularly-scheduled congregate religious programming would not be cancelled for not having a community volunteer or DOC Chaplain of that faith available to lead the event. Id. The settlement agreement allegedly required prison officials and DOC institutions to post a memorandum in the library and chapel (or other central location) by September 21, 2016, and for a term of six months after, notifying inmates that routinely-scheduled congregate religious programming would not be canceled for the lack of having a community volunteer or DOC Chaplain available to lead the event. Id.

         The plaintiff alleges that before January 3, 2017, he provided evidence showing that as of September 21, 2016, “the Memo had not been posted in some of the proper locations as required by the Agreement.” Id. at 4. He also alleges that before January 3, 2017, he “provided evidence showing that since September 22, 2016, routinely-scheduled congregate religious programs including Talim study groups at Green Bay Correctional Institution have been canceled in some or all DOC institutions due to the unavailability of a DOC Chaplain or volunteer.” Id. He does not say to whom he provided this evidence.

         2. Temporary Lock-Up and Conduct Report

         The plaintiff alleges that on January 3, 2017, he was summoned from his job in the Bathhouse to the Rotunda where prison staff “arrested” him and placed him in temporary lock-up (TLU) pending investigation into a charge of group resistance and petitions. Id. Once at lock-up, staff allegedly strip-searched the plaintiff. Id. at 4-5. The plaintiff alleges that several minutes later, another inmate, Darin Cobb, was placed in the TLU cell with him pending investigation into a similar charge of group resistance and petitions. Id. at 5.

         The plaintiff alleges that on January 9, 2017, the investigation into the plaintiff and Cobb concluded, and the plaintiff “was found not to have participated in any ‘group resistance and petitions.'” Id. at 6. He alleges, however, that defendants Kind and Eckstein allegedly refused to release the plaintiff from TLU back to general population. Id. The plaintiff alleges that Kind and Eckstein reviewed his retention on TLU every seven days (on January 11 and January 18) and that they kept him on TLU even though they knew that he was not involved in any group resistance and petitions. Id.

         On January 9, 2017, defendant Stevens allegedly issued the plaintiff a conduct report (CR 2922467), claiming that on December 30, 2016, both the plaintiff and Cobb stood before a group of inmates and led the group by answering questions during the Islamic Jumah service in the Chapel. Id. The conduct report also allegedly charged that the plaintiff “stated that per Mazin al-Shakhely (the volunteer) either he or Cobb would be giving the Khutba [sermon] from that point on.” Id. According to the plaintiff, the conduct report states that Cobb stood up next to Mazin, answered questions, and stated “that it doesn't matter if you're 2-4, 7-4, 22-12 you should know Jumah it is why we are here.” Id. The plaintiff alleges that the conduct report indicated the numbers referred to gangs, also known as security threat groups, and by making this statement, “Cobb implied that the Jumah service is for participating in security threat group gatherings; 303.24.” Id. According to the plaintiff, the conduct report ended:

Per the Religious Policy, inmates are not allowed to lead groups at any time; 303.28. Volunteer Mazin al-Shakhely was present for this service and leads it. He did not give permission for West or Cobb to lead this service; 303.31. Mazin said that he asked these two inmates to let him know what were the issues facing the Islamic inmates at GBCI so that he could better prepare his Khutba's.

Id. at 6-7. The plaintiff alleges that defendant Stevens issued a conduct report against Cobb with the same allegations. Id. at 7. Defendant Stevens allegedly charged the plaintiff and Cobb with violating prison rules 303.28 (Disobeying order) and 303.31 (Lying), and he charged Cobb with an additional charge of 303.24 (Group Resistance and Petitions). Id.

         The plaintiff alleges that on January 11, 2017, defendant Baumann stated that both conduct reports would be designated as “Major Offenses” under 303.71(2). Id. He also alleges that none of the charges are designated as Major Offenses under 303.71(2). Id.

         The plaintiff says that on January 17, 2017, Ms. Gerrits visited the plaintiff and Cobb at their cell and said that she had been assigned as their advocates for the hearings on their conduct reports. Id. at 8. She allegedly gave them each a witness form to fill out and told them to turn it in that night. Id. The plaintiff allegedly turned his in that night by passing it to an officer during evening medication pass. Id. He states that he requested two ...


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