United States District Court, E.D. Wisconsin
TIMOTHY T. MURRY, Plaintiff,
CATHY JESS, WARDEN SCOTT ECKSTEIN, and CAPT VANLANEN, Defendants.
JOSEPH UNITED STATES MAGISTRATE JUDGE.
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).
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.
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 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.
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. §
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).
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,
Allegations in the Complaint
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.
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.)
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
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).
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. ...