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Smith v. Tritt

United States District Court, E.D. Wisconsin

June 26, 2019

VIRGIL M. SMITH, Plaintiff,
KYLE TRITT, Defendant.



         Plaintiff 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. § 1915(b).

         The 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. § 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). 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) (citations omitted).

         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). 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).

         In 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.

         To 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, 106 (1976)).

         Plaintiff 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).

         Frame 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.

         On 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).

         Returning 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.

         Plaintiff 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.

         Plaintiff 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).

         The 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)). ...

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