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Tucker v. Eckstein

United States District Court, E.D. Wisconsin

July 22, 2019

GREGORY TUCKER, Plaintiff,
v.
WARDEN SCOTT ECKSTEIN, J. PERTTU, B. HOMPE, C. O'DONNELL, and OWENS, Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING PLAINTIFF'S COMPLAINT (DKT. NO. 1) AND DISMISSING CASE

          Hon. Pamela Pepper United States District Judge.

         Gregory Tucker, a prisoner at Green Bay Correctional Institution who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants denied him access to the courts. Dkt. No. 1. The plaintiff also filed a motion for leave to proceed without prepaying the filing fee. Dkt. No. 2.

         I. Motion to Proceed without Prepaying the Filing Fee

         The Prison Litigation Reform Act (PLRA) gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee if they comply with certain requirements. 28 U.S.C. §1915. One of those requirements is that the prisoner pay an initial partial filing fee.

         On February 22, 2019, the court ordered the plaintiff to pay an initial partial filing fee of $25.83. Dkt. No. 5. The court received the fee on March 13, 2019. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee, and will allow the plaintiff to pay the remainder of the filing fee over time in the manner explained at the end of this order.

         II. Screening the Complaint

         A. Standard

         The law requires the court 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 part of it, 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).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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, district courts follow the principles in Twombly. First, courts “identify[] 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. Second, if there are well-pleaded factual allegations, the court must “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. §1983, a plaintiff must allege that 1) someone deprived him of a right secured by the Constitution or laws of the United States and 2) whoever deprived him of that right was acting under color of state law. Buchanan-Moore v. Cty. 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 gives a pro se plaintiff's 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)).

         B. The Facts in the Complaint

         The plaintiff alleges that on August 23, 2018, he filed an inmate complaint asserting that he was being denied access to the courts. Dkt. No. 1. at 3. He explains that on August 24, 2018, defendant J. Perttu dismissed the complaint, indicating that (a) library times were scheduled on a rotating basis, (b) library time was considered a leisure activity under the administrative code and (c) the plaintiff should follow the procedure for obtaining a deadline pass. Id. The plaintiff says that defendant S. Eckstein (then the warden at Green Bay Correctional Institution) “upheld” the dismissal “under the false assertion that the complaint was about inadequate library time.” Id. The plaintiff asserts that he filed an appeal with the prison complaint examiner, defendant B. Hompe, but that Hompe dismissed the appeal “under the same false assertion.” Id. Defendant C. O'Donnell from the office of the Secretary of the Department of corrections “upheld” the dismissal of the appeal. Id. at 3-4.

         The plaintiff asserts that since then, he has sent interview requests to the person who was prison librarian at the time, asking “to be granted a legal deadline so that [he] could complete the research and writing of [his] state habeas corpus.” Id. at 4. The plaintiff alleges that he has not received a response to his requests or any passes to go to the library, “other than the passes [he] receive[s] once a week every Monday.” Id. The plaintiff contents that he is being “denied access to the library to research [his] issues, ” and thus that he is being “denied [his] right to access the courts.” Id. He argues that he can't have meaningful access to the courts if he's allowed to go to ...


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