United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
Robert Phoneprasith, who is incarcerated at the Wisconsin
Secure Program Facility, proceeds in this matter pro
se. He alleges that the defendants named in this matter
violated his constitutional rights by retaliating against him
for using the inmate complaint process. (Docket #1). This
matter comes before the Court on Plaintiff's motion to
proceed in forma pauperis. (Docket #6). Plaintiff
was assessed, and paid, a $35.51 filing fee. See
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. 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,
the events in this complaint unfolded at Dodge Correctional
Institution (“DCI”). Plaintiff alleges that on
November 5, 2017, he employed the grievance process to
complain about how DCI librarians Tammy “Ta”
DeVries (“DeVries”) and Michael Bernstein
(“Bernstein”) mishandled his legal materials,
apparently with respect to a photocopying policy.
See (Docket #1 at 5). The inmate complaint examiner
told him to address the issue with Program Supervisor Brian
Greff (“Greff”) before filing a grievance.
Plaintiff complained to Greff, who said, “[i]t is
unfortunate that you were inconvenienced. The staff try to
accommodate the needs of over 1600 inmates and their use of
the library.” Id. Plaintiff found this
response unsatisfactory in light of the fact that he had, in
fact, scheduled time with the librarians in order to be
personally accommodated, and seemed to be the only inmate
attempting to use the library at the time that the
Plaintiff submitted his complaint that his legal materials
were mishandled, DeVries changed his permitted law library
time so that it would interfere with his work schedule.
Specifically, his law library passes changed from 1:30 p.m.
to 7:30 a.m., 8:30 a.m., and 9:30 a.m. Plaintiff, who
typically worked in the kitchen during the morning, found
this change difficult. He had been at DCI since 2012 and had
never had a morning library pass before. He received no
advanced notice about at least one of these changes. The
changes led him to suspect that something was amiss.
December 7, 2017, when Plaintiff asked Devries and Bernstein
why they had switched his law library times, they explained
that he brought them too many documents to copy and file at
the last minute. Id. at 6. Plaintiff was
unconvinced; he contends that it does not take very long to
copy and file documents. After this exchange, he was escorted
out of the law library by a correctional officer and was
unable to use his law library pass that day.
was only the beginning of the retaliation. On December 14,
2017, DeVries denied Plaintiff a copy of the Wisconsin jury
instructions, which he had previously been using. Plaintiff
complained about this action to Greff on December 17, 2017,
to which Greff responded that the library offered everything
that it was required to offer pursuant to Division of Adult
Institution (“DAI”) Policy No. 309.15.01. The
policy does not specifically include jury instructions.
Plaintiff is pursuing three defective jury instruction
claims; therefore, withholding the instructions hinders his
ability to litigate his claims. Plaintiff alleges that in the
months before his library law passes changed and the jury
instructions were withheld from him, it was “no secret
among the DCI staff and inmates that [he] had been tirelessly
complaining about. . .DeVries and Bernstein.”
Id. at 8.
January 18, 2018, Plaintiff contends that the Program Review
Committee (“PRC”), which included Greff, Joe
Falke (“Falke”), and Sara Koerner
(“Koerner”), decided to recommend that Plaintiff
be transferred from DCI to WSPF. Plaintiff contends that this
was an adverse action in light of the fact that he had
established a fairly good prison report at DCI. Plaintiff
believes that WSPF is for “bad” inmates and did
not believe the PRC's explanation that he was being
transferred to WSPF for programing and inmate population
control reasons. He cites Greff's involvement in both the
complaint review process and the PRC as a fact in support of
the inference that the transfer was retaliatory.
wrote to various Wisconsin DOC officials, including Jon E.
Litscher, Cathy Jess, Mark Heise, Daisy Chase, William
Pollard, Joanne Bovee, Cheryl Eplett, Dylon Radtke, Greff,
Falke, and Koerner, explaining why he did not believe he
should be transferred to WSPF. He also filed an inmate
complaint about the transfer, which was rejected by Bovee as
both premature and failing to exhaust an administrative
remedy in place for appeals of decisions by the PRC.
Id. at 10.
January 31, 2019, Plaintiff's transfer from DCI to WSPF
was approved. Chase prepared an inmate classification report,
which included a statement from the PRC that “the
committee is in agreement that [Plaintiff] may benefit from
the resources available at WSPF and WSPF is looking to fill
general population beds.” Id. at 11. Plaintiff
found this explanation unpersuasive, claiming that there are
no noteworthy differences in programming between DCI and
WSPF. He notes that he has too much time left in confinement
to participate in the Thinking for a Change Program available
at WSPF (which is also available at DCI). He also states that
DCI was “so over-crowded that [it] was sending inmates
classified [as] maximum security to county jails for
temporary holding” and that DCI had “more than
enough inmates classified [as] maximum security to fill
WSPF's open bed spaces” without having to transfer
him. Id. at 12. He believes that the PRC's
recommendations were pretext for their retaliation against
him, and that he was singled out for using the inmate
complaint process. On February 2, 2018, Plaintiff filed an
administrative review of the re-classification decision,
which was rejected as premature and failing to exhaust the
administrative remedy in place for appeals of decisions by
the PRC. An appeal was rejected on February 12, 2018 by
transferred to WSPF, Plaintiff noticed that over half of the
inmates in his unit were sent there for disciplinary reasons.
He submitted a complaint to the Wisconsin Attorney General.
The Bureau of Offender Classification and Movement Designee,
“J. Merbach, ” denied the complaint, reiterating
that he was not transferred to WSPF for disciplinary reasons,
but rather because of bed space and the availability of
resources. Id. Plaintiff continued to find this
uncompelling. Id. at 13-14. On July 22, 2018, he
submitted an inmate complaint, which was, again, rejected and
dismissed by Ellen Ray and Gary Boughton because Plaintiff
failed to use the administrative review process prescribed
for challenges to PRC decisions. Id. at 14-15.
Plaintiff filed an appeal, contending that by dismissing his
complaint for “technical reasons, ” these
officials were complicit in the retaliation. Id. at
15. The appeal was dismissed by the Corrections Complaint
Examiner Brad Hompe ...