United States District Court, E.D. Wisconsin
VIRGIL M. SMITH, Plaintiff,
KYLE TRITT, Defendant.
STADTMUELLER, U.S. DISTRICT JUDGE
Virgil M. Smith, who is incarcerated in Waupun Correctional
Institution (“Waupun”), proceeds in this matter
pro se. He filed a complaint alleging that Defendant
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 #2). Plaintiff has been assessed and
has paid an initial partial filing fee of $1.33. 28 U.S.C.
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 Defendant, a correctional officer at Waupun,
interfered with his access to the court system, specifically
by impeding his ability to file a motion in a civil rights
case. (Docket #1). It makes sense, then, to begin
Plaintiff's tale with the prior case. In December 2017,
Plaintiff sued prison social worker Bailey Frame
(“Frame”) for denying his request to make a
telephone call to his aunt. Virgil M. Smith v. Bailey
Frame, 17-CV-1745-JPS (E.D. Wis.), (Docket #1). The
action was assigned to this branch of the Court. Plaintiff
was allowed to proceed on a First Amendment claim for
interference with his right of familial association.
Id., (Docket #21).
filed a motion for summary judgment, arguing that she had
legitimate reasons to disallow Plaintiff's telephone
call. Id., (Docket #61). Plaintiff's opposition
to the motion was based solely on purported procedural
deficiencies in the Frame's motion. Id. The
Court found that the motion complied with the applicable
procedural rules, and further that summary judgment was
appropriate on the facts presented. Id. The action
was dismissed with prejudice on October 9, 2018. Id.
November 9, 2018, Plaintiff filed a notice of appeal.
Id., (Docket #64). On November 19, 2018, Plaintiff
sought leave from this Court to appeal in forma
pauperis. Id., (Docket #70). The Court denied
that request the next day. Id., (Docket #71). In
January and February 2019, Plaintiff asked for leave to
proceed in forma pauperis directly from the Court of
Appeals. Virgil Smith v. Bailey Frame, 18-3409 (7th
Cir.), (Docket #8, #11, and #14). That court denied all of
Plaintiff's requests and ordered him to pay the filing
fee. Id., (Docket #10 and #17). Plaintiff did not
pay the fee and his appeal was dismissed on March 18, 2019.
Id., (Docket #18).
to the present case, Plaintiff alleges that in February and
March 2019, he tried to obtain some legal paperwork in order
to prepare a motion for reconsideration to be filed in
17-CV-1745. (Docket #1). He contends that he desired to raise
a number of issues in the motion. Id. First,
Plaintiff would allege that Frame's counsel and the Court
“failed to disclose that the defendant had filed a
brief during summary judgment[.]” Id. at 6.
Second, Plaintiff would assert that the Court's dismissal
order, and presumably its other orders, were void because the
Court was biased. Id. at 7. Plaintiff lists various
rulings by the Court as the source for his allegation of
bias. Id. Third, Plaintiff would argue that because
“more than two errors were committed in the course of
the [case], ” he was denied “a fundamentally fair
trial.” Id. at 8. Plaintiff accuses Defendant,
a supervisory correctional officer, of interfering with his
ability to file this motion because Defendant would not give
him his legal materials.
claims that Defendant violated his First Amendment rights to
petition the government for redress. Id. This is
more commonly known as an “access-to-courts”
claim. Ortiz v. Downey, 561 F.3d 664, 670-71 (7th
Cir. 2009). To state an access-to-courts claim, a prisoner
must be deprived of such access and suffer an actual injury
as a result. Id. For the purposes of this analysis,
the Court assumes that Plaintiff has adequately alleged that
he was deprived of access to the court system by
Defendant's refusal to provide him his legal materials.
falters on the second aspect of the claim, however. The
“actual injury” he must show is that
Defendant's conduct “hindered his ability to pursue
a nonfrivolous legal claim.” Johnson v.
Barczak, 338 F.3d 771, 772 (7th Cir. 2003). In other
words, “the right [of access to courts] is ancillary to
the underlying claim, without which a plaintiff cannot have
suffered injury by being shut out of court.”
Christopher v. Harbury, 536 U.S. 403, 415 (2002).
Thus, a plaintiff seeking to proceed on an access-to-courts
claim must “spell out, in minimal detail, the
connection between the alleged denial of access to legal
materials and an inability to pursue a legitimate challenge
to a conviction, sentence, or prison conditions.”
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.
2006); see also Lehn v. Holmes, 364 F.3d 862, 868-69
(7th Cir. 2004).
claim Plaintiff has identified, the motion for
reconsideration, is entirely frivolous. Plaintiff states that
the basis for his motion would have been Federal Rule of
Civil Procedure (“FRCP”) 60(b). See
(Docket #1 at 6- 8). FRCP 60(b) offers relief from a
court's orders or judgments if a party can show
“the narrow grounds of mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, voidness, or
‘any other reason justifying relief from the operation
of the judgment.'” Tylon v. City of
Chicago, 97 Fed.Appx. 680, 681 (7th Cir. 2004) (quoting
FRCP 60(b)(6)). ...