United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Freddie Cooper, Jr. proceeds in this matter pro se.
He filed a complaint alleging that Defendants violated his
constitutional rights when they did not promptly deliver his
mail on three days over the summer. (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 $6.16. 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. 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 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)).
have protected First Amendment interests in both sending and
receiving mail.” Rowe v. Shake, 196 F.3d 778,
782 (7th Cir. 1999). These interests are particularly strong
with regard to legal mail. Id. “Prison
regulations or practices affecting a prisoner's receipt
of non-legal mail also implicate First Amendment rights and
must be ‘reasonably related to legitimate penological
interests.'” Id. (quoting Thornburgh
v. Abbott, 490 U.S. 401, 409 (1989)). However,
“merely alleging an isolated delay or some other
relatively short-term, non content-based disruption in the
delivery of inmate reading materials will not support, even
as against a motion to dismiss, a cause of action grounded
upon the First Amendment.” Id. (quoting
Sizemore v. Williford, 829 F.2d 608, 610 (7th Cir.
1987)). In Rowe, the Seventh Circuit held that short
term, sporadic delays in receiving general, content-neutral
mail did not rise to a constitutional violation. Id.
Plaintiff alleges that on three days-Friday, June 28, 2019,
Monday, July 1, 2019, and Friday, July 5, 2019-his mail was
not delivered to him, despite the fact that Milwaukee Secure
Detention Facility received the mail. (Docket #1 at 2). On
Monday, July 1, 2019, he alleges that Ms. Williams lied to
him and told him that there was “no mail, ” even
though, he claims, it was already sorted and just needed to
be delivered. Later that day, Sgt. Dawson told him that the
“[first] shift was suppose[d] to do the mail, ”
but they lacked resources. Id. When Plaintiff made a
formal complaint to the unit manager, he was informed that
the inmates “did not get mail” on those days due
to “[i]nstitutional needs.” Id.
Plaintiff interpreted this as a lie, because “mail was
delivered. . .on those days, but no one handed it
allegations do not rise to the level of a First Amendment
violation. He describes three isolated incidents of
content-neutral delays in delivering mail in the week
surrounding a national holiday. There are no facts in the
complaint that would allow the Court to infer that prison
officials violated Plaintiff's First Amendment rights.
For example, the complaint does not allege that these delays
were ongoing, or specifically directed at certain types of
mail or certain inmates. This case is very similar to that in
Rowe, where the Seventh Circuit found that
occasional, brief delays in the receipt of mail do not give
rise to a constitutional violation.
IT IS ORDERED that the plaintiff's
motion for leave to proceed without prepayment of the filing
fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) for failure to
state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a "strike" under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from his institution trust account
the $343.84 balance of the filing fee by collecting monthly
payments from the plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to the prisoner's trust account and forwarding
payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If the
plaintiff is transferred to another ...