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Adell v. Foster

United States District Court, E.D. Wisconsin

April 29, 2019




         Plaintiff Mark Anthony Adell, who is currently serving a state prison sentence at Waupun Correctional Institution (WCI) and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. On April 3, 2019, the court dismissed this action without prejudice for failure to prosecute under Civil Local Rule 41(c) because Adell failed to timely file a certified trust account statement for the six months preceding the filing of the complaint. The court gave Adell until April 24, 2019, to move to reopen the case and provide the required trust account statement. Adell has since filed a motion to reverse the court's order of dismissal, which this court construes as a motion to reopen, and a certified copy of his trust account statement. The court will grant the motion to reopen, waive the partial filing fee, and screen his complaint.


         Adell has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). Adell has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2). It appears that Adell lacks the funds to pay an initial partial filing fee. Therefore, the court will waive the initial partial filing fee, 28 U.S.C. § 1915(b)(4), and grant Adell's motion to proceed in forma pauperis.


         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). 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).

         To 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).


         Adell's complaint, which totals twenty-three pages with sixty-five pages of attachments, details his efforts to use the inmate complaint review system (ICRS) at WCI to redress an issue he had with his medications. He alleges that he submitted an inmate complaint regarding his medications and that Inmate Complaint Examiner (ICE) Tonia Moon refused to accept the complaint due to its failure to identify the specific medications at issue. Adell resubmitted the complaint with the belief that he addressed Moon's concerns, but Moon confiscated it, claiming that Adell had failed to follow her previous directive. Dkt. No. 1-1 Ex. E. Adell then “assum[ed] Moon's confiscation could be construed as a final decision, albeit by proxy, ” and took steps to prepare a writ of certiorari action in state court, which needed to be filed within forty-five days. Dkt. No. 1 at ¶ 9.

         Adell encountered several roadblocks in his attempt to prepare and timely file a certiorari action. First, he received a cell confinement penalty that limited his access to the law library absent a compelling reason such as a court-ordered deadline. Requests for library access were reviewed by Nevin Webster, WCI's librarian. Adell submitted an access request on January 17, 2019, which Webster rejected on the basis that no final adverse decision had occurred. Dkt. No. 1-1 Ex. D. Adell subsequently submitted second and third access requests. Webster rejected the second request for the same reason as the first and did not respond to the third request. Id. Ex. C. Adell later filed two additional access requests, the first of which was denied because the requested date was already scheduled and the second of which was denied because no time was available during the requested week. Id. Exs. 2, 9.

         Second, Adell's attempts to complain about Webster's decisions to deny him access to the law library were fruitless. On January 27, 2019, Adell filed an inmate complaint challenging Webster's adverse decisions, which J. Muenchow, another ICE at WCI, refused to accept because Adell could only file one complaint per week. Id. Exs. H, I, N. Muenchow did not return the January 27th complaint until February 5th. Also on February 5th, Adell wrote to WCI warden Brian Foster to complain about Moon and Muenchow's handling of his complaints, but Foster determined that no mishandling occurred. Id. Ex. 3. Adell learned on February 11th that his complaint regarding library access was accepted for review on February 8th.

         Finally, Adell experienced delays in receiving the documentation he submitted along with his complaint against Webster. Adell alleges that Moon did not promptly scan and return the attachments to the complaint but rather said, in response to multiple inquiries from Adell, that she would keep them until she was done with them. Id. Ex. 5. On February 19th, Adell again wrote Foster, and Foster referred Adell's concerns to Moon, who again told Adell he would receive the papers when his complaint was answered, but she also stated that “they were returned 2/22.” Id. Ex. 10. Adell alleges that he received backlogged complaints that were not accepted but not the documents related to his complaint against Webster. Adell wrote to Foster to complain, but Foster noted that his complaint was still in the process of being investigated. Id. Ex. 11. Adell alleges that the documents he sought were returned on March 2nd in response to his correspondence to Moon and Foster.

         Adell claims that these roadblocks impeded his ability to timely prepare and file a writ of certiorari action in state court to challenge the denial of his inmate complaint related to his medications. Based on these allegations, Adell seeks to bring claims of deliberate indifference to medical needs, denial of access to the courts, retaliation against First Amendment protected activity, and civil conspiracy.

         THE ...

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