United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Ronald Lema Kupsky, who is currently serving a state prison
sentence at Waupun Correctional Institution and representing
himself, filed a complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. Kupsky also
filed a motion to proceed without prepayment of the filing
fee. On February 21, 2019, the court denied Kupsky's
motion to proceed without prepayment of the filing fee
because of his restricted filer status and directed him to
pay the full filing fee of $400 within 14 days. Kupsky has
timely paid the full filing fee, and the court will now
screen his complaint.
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).
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). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the 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). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
of the Complaint
alleges that, in December 2018, he had his family order him a
book entitled So I'm a Spider - So What?, which
is a part of a Japanese light novel series that is listed on
Barnesandnoble.com as recommended for ages 13-18. Kupsky
alleges that, on December 28, 2018, he received notice from
York that he would not be allowed to have the book because it
was (1) not accompanied by an itemized vendor receipt or
itemized packing slip, (2) teaches or advocates behavior that
violates the laws of Wisconsin, the United States, or the
rules of the Department of Corrections (DOC), (3) teaches or
advocates violence and presents a clear and present danger to
institutional security, and (4) is “injurious” as
defined in Wisconsin Administrative Code § DOC
309.04(4)(c)8. See ECF No. 1-1 at 3.
notice that he was denied the book, Kupsky filed an inmate
complaint. On January 14, 2019, Kupsky received a response to
his complaint from Moon, stating that SSD Supervisor Bonis
would not allow him to have the book because it was
inconsistent with his rehabilitative goals and was therefore
“injurious” under § DOC 309.04(4)(c)(8).
Specifically, Moon's response noted that the book's
“subject matter contains nudity [and] depics [sic] your
[sic] girls in scantily clad clothing” and that, per
Bonis, Kupsky was prohibited from exposure to such content.
ECF No. 1-1 at 1. Kupsky denies that the book has nude and/or
scantily clad clothing in it. An attachment to Kupsky's
complaint shows that he appealed the dismissal of his
complaint. See Id. at 2. On January 22, 2019, the
Corrections Complaint Examiner recommended that Kupsky's
appeal be dismissed because the institution's response
that the book was not in the best interest of Kupsky's
rehabilitative needs was reasonable. Id.
commenced this action on February 19, 2019, alleging that his
First Amendment rights were violated and that he was denied
equal protection of the laws because other inmates were
allowed to have the book he was denied. See ECF No.
1 at 3.
has stated a First Amendment claim against Bonis, York, and
Moon in their individual capacities. “A prison's
refusal to allow an inmate access to a book ‘presents a
substantial First Amendment issue. Freedom of speech is not
merely freedom to speak; it is also freedom to
read.'” Munson v. Gaetz, 673 F.3d 630, 633
(7th Cir. 2012) (quoting King v. Fed. Bureau of
Prisons, 415 F.3d 634, 638 (7th Cir. 2005)).
“Forbidding someone the right to read shuts ‘him
out of the marketplace of ideas and opinions,' which is
what the Free Speech Clause protects.” Id.
(quoting King, 415 F.3d at 638). Prisons may have
valid penological reasons for limiting prison inmates'
access to certain books. Id. While prisons have
“great latitude” in limiting prisoners'
reading material, Mays v. Springborn, 575 F.3d 643,
649 (7th Cir. 2009), “[g]reat latitude is not the same
as unreviewable discretion.” Payton v. Cannon,
806 F.3d 1109, 1110 (7th Cir. 2015). “When a prison
regulation restricts a prisoner's First Amendment right
to free speech, it is valid only if it is reasonably related
to legitimate penological interests.” Lindell v.
Frank, 377 F.3d 655, 657 (7th Cir. 2004) (citing
Turner v. Safley, 482 U.S. 78, 79 (1987)). Kupsky
alleges that the defendants denied him access to a book and
that their reason for the denial was unfounded. These
allegations are sufficient to state a First Amendment claim.
Whether the restriction is reasonably related to a legitimate
penological interest is not a question the court considers at
this screening stage. See, e.g., Robbins v.
Foster, 723 Fed.Appx. 368 (7th Cir. 2018) (affirming a
district court's grant of summary judgment for the
defendants on a First Amendment claim for the denial of
access to a book where the denial was made under Wisconsin
Administrative Code § DOC 309.04(4)(c)(8)).
has also stated a Fourteenth Amendment equal protection claim
against Bonis, York, and Moon in their individual capacities.
To allege a class-of-one equal protection claim, a plaintiff
must allege that he “has been intentionally treated
differently from others similarly situated and that there is
no rational basis for the difference in treatment.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564
(2000). Kupsky's allegations that he was denied access to
a book that other inmates were allowed to have and that he
was denied the book for an illegitimate reason are sufficient
to state an equal protection claim. At this screening stage,
the court cannot tell whether the other inmates who were
allowed access to the book were similarly situated to Kupsky
or whether, if they were, the defendants had a rational basis
for the differential treatment. Given that the court must
construe pro se complaints liberally, Tarkowski v. Robert
Bartlett Realty Co., 644 F.2d 1204, 1207 (7th Cir.
1980), Kupsky may proceed past screening on his equal
Kupsky can proceed on his First and Fourteenth Amendment
claims against Bonis, York, and Moon. Kupsky also alleges in
passing that the defendants' lies about the content of
the book he was denied constituted an excessive use of force,
but he fails to state such a claim because lies do not amount
to a use of force, much less a use of physical force,
cognizable under the Eighth Amendment. See Hudson v.
McMillian, 503 U.S. 1, 7-10 (1992) (noting that an
Eighth Amendment excessive force claim requires more than an
allegation of de minimis use of physical force).
IS THEREFORE ORDERED that this case is referred to
Magistrate Judge David E. Jones for all pretrial proceedings
in accordance with 28 U.S.C. § 636(b)(1). The magistrate
judge will decide all non-dispositive motions (i.e., motions
to compel, motions to recruit counsel, and motions to amend
pleadings). A party may serve and file objections to an order
deciding a non-dispositive issue within 14 days of being
served with a copy. This court will consider any timely
objection and modify or set aside any part of the order that
is clearly erroneous or is contrary to law. See Fed.
R. Civ. P. 72(a). The magistrate judge will also issue a
report and recommendation concerning any motion for
injunctive relief or dispositive motions that are filed
(i.e., motions to dismiss and motions for summary judgment).
Either party may object to the magistrate judge's report
and recommendation within 14 days of being served with a
copy. This court will conduct a de novo review of any part of