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Murry v. Jess

United States District Court, E.D. Wisconsin

February 22, 2019

TIMOTHY T. MURRY, Plaintiff,
v.
CATHY JESS, WARDEN SCOTT ECKSTEIN, and CAPT VANLANEN, Defendants.

          ORDER

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE.

         Timothy T. Murry, a pro se inmate at Green Bay Correctional Institution (GBCI), filed a complaint under 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights by denying him access to the court. This matter is before the court on Murry's motion to proceed without prepayment of the civil case filing fee (ECF No. 2) and for screening of his complaint (ECF No. 1).

         The court has jurisdiction to resolve Murry's motion to proceed without prepayment of the filing fee and to screen the complaint in light of Murry's 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 fling fee, if 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 11, 2019, the court ordered Murry to pay an initial partial filing fee of $3.20. (ECF No. 12.) Murry paid the fee on February 5, 2019. As such, the court will grant his motion. Murry 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). The 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. 28 U.S.C. § 1915A(b).

         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 Pie] 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 plaintiffs 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

         Murry asserts that the Department of Corrections, Secretary Cathy Jess, and GBCI Warden Scott Eckstein adopted and implemented a "no ink pen or pencil in segregation" policy. (ECF No. 1 at 3.) He states that this policy, however, impedes his ability to access the courts. He says that because inmates in segregation can no longer have these writing utensils, GBCI provides them with rubber lead pencils. However, these rubber pencils do not work well with inmate complaint forms, the first step to proceeding on any claim in federal court.

         Particularly, he states that on October 3, 2018, he filed an inmate complaint regarding separate issues-his conditions of confinement and the obstruction of his mail-using a rubber lead pencil. The complaint, however, was returned to him because "it [was] illegible...The writing in the complaint [was] too light to read or scan into the ICR." (Id.) When Murry asked for a black crayon to re-draft the complaint, he was told by segregation staff that "they did not have any." (Id. at 4.)

         Murry asserts that he was only able to draft the complaint for this federal case with the assistance of another inmate's carbon paper. Murry seeks injunctive relief and compensatory and punitive damages. 2.2 Analysis The Prison Litigation Reform Act (PLRA) provides that a prisoner cannot assert a cause of action under federal law "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 93 (2006) (holding that the PLRA requires proper exhaustion of administrative remedies). Exhaustion requires that a prisoner comply with the rules applicable to the grievance process at the inmate's institution. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). The Seventh Circuit applies a "strict compliance approach to exhaustion," and expects prisoners to adhere to "the specific procedures and deadlines established by the prison's policy." Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006); see also Hernandez v. Dart, 814 F.3d 836, 842 (7th Cir. 2016) (citations omitted).

         Wisconsin has implemented the Inmate Complaint Review System (ICRS) under which inmate grievances concerning prison conditions or the actions of prison officials are "expeditiously raised, investigated and decided." Wis. Admin. Code § DOC 310.01. Under the ICRS, the first steps in effectuating the grievance process involves an inmate fling a complaint with the institution complaint examiner within fourteen calendar days after the occurrence giving rise to the complaint, unless good cause exists to excuse a delay. Wis. Admin. Code § DOC 310.09(6).

         Thus, Murry's contentions regarding his ability to initiate the process, file an inmate grievance, is significant as failure to properly exhaust each step of the grievance process constitutes failure to exhaust available administrative remedies. Pozo, 286 F.3d at 1025. ...


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