United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
Alfredo Daniel Montanez, who is incarcerated in the Milwaukee
County Jail (the “Jail”), proceeds in this matter
pro se. He filed a complaint alleging that
Defendants violated his constitutional rights. (Docket #1).
This matter comes before the court on Plaintiff's
petition to proceed without prepayment of the filing fee
(in forma pauperis). (Docket #4). Plaintiff has been
assessed and has paid an initial partial filing fee of
$37.67. 28 U.S.C. § 1915(b).
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an 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. Id. §
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). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109- 10 (7th Cir. 2003)
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). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “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). 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).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. Section 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. 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 is obliged
to give the 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,
alleges that the inmate grievance process at the Jail is
“fraudulent.” (Docket #1 at 4). He avers that the
Jail's policies for grievance handling are not followed
and that grievances are either ignored or given short shrift.
Id. Plaintiff gives examples of issues he has
grieved about, including mail, racial discrimination,
commissary policies, lack of appropriate shoes, and phone
access. Id. at 5-8. Plaintiff implies that
Defendants, various unknown high-ranking Jail officials, are
responsible for the broken grievance system. Id. at
complains that the Jail's inadequate and ineffective
grievance process violates his right to procedural due
process. Id. at 8-9. Plaintiff is incorrect. The
Constitution does not require prisons to enact grievance
procedures or to handle grievances in a particular way.
Kervin v. Barnes, 787 F.3d 833, 835 (7th Cir. 2015)
(“[T]he inadequacies of the grievance procedure itself
. . . cannot form the basis for a constitutional
claim.”); Owens v. Hinsley, 635 F.3d 950, 953
(7th Cir. 2011) (“Prison grievance procedures are not
mandated by the First Amendment and do not by their very
existence create interests protected by the Due Process
Clause, and so the alleged mishandling of Owens's
grievances by persons who otherwise did not cause or
participate in the underlying conduct states no
claim.”). This action must, therefore, be dismissed
with prejudice for Plaintiff's failure to state a viable
claim for relief.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #4) be and the same is
IS FURTHER ORDERED that this action is
DISMISSED with prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure
to state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that Plaintiff has incurred a “strike” under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account
the balance of the filing fee by collecting monthly payments
from Plaintiff's prison trust account in an amount equal
to 20% of the preceding month's income credited to
Plaintiff's trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds
$10 in accordance with 28 U.S.C. § 1915(b)(2). The
payments shall be clearly identified by the case name and
number assigned to this action. If Plaintiff is transferred
to another institution, county, state, or federal, the
transferring institution shall forward a copy of this Order
along with Plaintiff's remaining balance to the receiving
IS FURTHER ORDERED that a copy of this order be sent
to the officer in charge of the agency ...