United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
Terrance Prude, who is incarcerated at Green Bay Correctional
Institution, proceeds in this matter pro se. He
filed a complaint alleging that the Defendants violated his
civil rights. (Docket #1). This matter comes before the Court
on Plaintiff's petition to proceed without prepayment of
the filing fee, or in forma pauperis. (Docket #9).
Plaintiff has been assessed and has paid an initial partial
filing fee of $5.64. See 28 U.S.C. § 1915(b).
Court must 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)).
times relevant to Plaintiff's complaint, he was confined
at Green Bay Correctional Institution (“GBCI”).
(Docket #1 at 1). Defendants are employees of GBCI.
Id. Plaintiff alleges that on February 23, 2019,
Colin Fruehbrodt (“Fruehbrodt”) searched his cell
and found an empty peanut butter jar that Plaintiff had
cleaned out and was using as a drinking cup. Id. at
2. Fruehbrodt told Plaintiff that the jar violated a prison
storage rule, and he collected Plaintiff's hygiene items
that were contained in jars. Id. Fruehbrodt told
Plaintiff that if he disagreed with the jar confiscation, he
could tell the hearing officer at the disciplinary hearing.
Id. In response, Plaintiff told Fruehbrodt he would
go outside of the institution and complain to the Wisconsin
Department of Corrections (“WDOC”) secretary
because the hearing officer was biased. Id.
Fruehbrodt then charged Plaintiff with threatening an officer
under a prison rule. Id. At a subsequent
disciplinary hearing, the hearing officer, Andrew Wickman
(“Wickman”), found Plaintiff guilty of
intimidating staff based on Plaintiff telling Fruehbrodt that
he intended to complain about him to the secretary of the
WDOC. Id. at 3. Plaintiff was sentenced to sixty
days of “disciplinary separation.” Id.
Steven Schueler (“Schueler”), then the
prison's warden, affirmed the hearing officer's
decision on appeal. Id.
will be permitted to proceed against Fruehbrodt, Wickman, and
Schueler on a First Amendment retaliation claim. To prevail
on this claim, Plaintiff must ultimately show that “(1)
his threat is protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First
Amendment speech; and (3) his threat was at ‘least a
motivating factor'” in the defendants' decision
to take retaliatory action. Reed v. Bowen, 769
Fed.Appx. 365, 370 (7th Cir. 2019) (quoting Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). The Seventh
Circuit has not yet ruled that threatening to file a lawsuit
or grievance, as opposed to actually filing it, is protected
activity. See Reed, 769 Fed.Appx. at 370; see
also Lindell v. O'Donnell, No. 05-C-04-C, 2005 WL
2740999, at *29 (W.D. Wis. Oct. 21, 2005) (“Whether
threatening to file an inmate complaint or initiate legal
action is a similarly protected activity is a question of
first impression in the Seventh Circuit. I conclude that
speech indicating an intention to file an inmate complaint
about a matter involving prison abuse is constitutionally
protected speech.”). The Court will assume for purposes
of screening that it is. Plaintiff has alleged that the
defendants punished him because of his threat to complain
about Fruehbrodt to higher authorities. This is sufficient to
pass the low bar of screening.
Plaintiff has also named Warden Radtke (“Radtke
“) in his official capacity “for injunctive
relief only to carry out the injunctive relief requested,
” which is expungement from his record of the conduct
report Plaintiff received for threatening Fruehbrodt. (Docket
#1 at 3). The Seventh Circuit has held that expungement of a
violation from an inmate's prison record may be an
appropriate remedy for some constitutional violations.
See Ware v. Heyne, 575 F.2d 593 (7th Cir. 1978);
see also Jones v. Russell, 149 F.Supp.3d 1095, 1106
(W.D. Wis. 2015). Whether such relief is appropriate here,
and whether naming Radtke is necessary to achieve that
relief, are questions that will be left for briefing at a
later stage of the case. Plaintiff will, for the present
time, be permitted to proceed against Radtke as well.
Plaintiff has also filed a motion for preliminary order
enjoining the defendants from confining him in segregation
based on the allegedly unconstitutional conduct report.
(Docket #2). To justify a preliminary injunction, Plaintiff
must show that he is likely to succeed on the merits, he is
likely to suffer irreparable harm without the injunction, the
harm he would suffer is greater than the harm that the
preliminary injunction would inflict on the defendants, and
the injunction is in the public interest. Bontrager v.
Ind. Family & Soc. Servs. Admin., 697 F.3d 604, 607
(7th Cir. 2012). “A preliminary injunction ordering [a]
defendant to take an affirmative act rather than merely
refrain from specific conduct, ” as is the case here,
“is ‘cautiously viewed and sparingly
issued.'” Knox v. Shearing, 637 Fed.Appx.
226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of
Ohio, 130 F.3d 293, 295 (7th Cir. 1997)). A preliminary
injunction is “an extraordinary remedy and is never
awarded as of right.” D.U. v. Rhoades, 825
F.3d 331, 335 (7th Cir. 2016) (citing Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 24 (2008)).
motion will be denied. First, an inmate's segregation
status is a matter of prison administration with which courts
are reluctant to interfere. See Turner v. Safley,
482 U.S. 78, 84-85 (1987) (encouraging “a policy of
judicial restraint” in the area of prison
administration). Second, the Court cannot conclude that
Plaintiff has shown anything approaching a likelihood of
success on the merits. This requires evidence, not merely
allegations, and the only evidence supporting Plaintiff's
claims at this stage is his own testimony. See Wheeler v.
Wexford Health Sources, Inc., 689 F.3d 680, 682-83 (7th
Cir. 2012). The Court is especially reluctant to find that
Plaintiff is likely to succeed given the uncertainty of the
law in the Seventh Circuit regarding whether a threat to file
a grievance is protected speech. Finally, success on his
First Amendment claim would not necessarily mean that
Plaintiff is entitled to relief from the punishment given to
him at his conduct hearing. For all of these reasons,
Plaintiff has not shown entitlement to the extraordinary
relief that is release from segregation.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #9) be and the same is
IS FURTHER ORDERED that Plaintiff's motion a
preliminary injunction (Docket #2) be ...