United States District Court, E.D. Wisconsin
William C. Griesbach, District Judge.
Anthony Tyrone Kudingo, who is currently serving a state
prison sentence at Dodge Correctional Institution and
representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
This matter comes before the court on Plaintiff's motion
for leave to proceed without prepaying the full filing fee
and to screen the complaint.
to Proceed without Prepayment of the Filing Fee
has requested leave to proceed without prepayment of the full
filing fee (in forma pauperis). A prisoner plaintiff
proceeding in forma pauperis is required to pay the
full amount of the $350.00 filing fee over time. See
28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified
copy of his prison trust account statement for the six-month
period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been
assessed and paid an initial partial filing fee of $18.16.
Plaintiff's motion for leave to proceed without prepaying
the filing fee will be granted.
of the Complaint
court is required 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 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. 28 U.S.C. §
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).
state a cognizable claim under the federal notice pleading
system, 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). The complaint must
contain sufficient factual matter “that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The court accepts the factual
allegations as true and liberally construes them in the
plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 651 (7th Cir. 2013). Nevertheless, 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).
of the Complaint
alleges that, in February 2011, almost ten years ago, he was
sexually assaulted by his cellmate at Racine Correctional
Institution. Plaintiff alleges that his cellmate had AIDS.
Plaintiff claims that after he reported the sexual assault to
a guard under the Prison Rape Elimination Act (PREA), 42
U.S.C. § 15601 et seq., the Department of
Corrections failed to take him to a local hospital to receive
a rape kit to collect evidence of the assault and to take a
test to be sure he did not have AIDS. He also asserts that
the Department of Corrections failed to provide psychological
counseling in reference to victims of abuse due to sexual
alleges that, while the Department of Corrections started an
investigation, it failed to inform Plaintiff of the steps
taken in the investigation because he was being released on
extended supervision on March 7, 2011. Plaintiff claims that
he struggled with anxiety, depression, and mood swings that
led to him using alcohol to “escape the reality of the
assault.” Compl. at 3, Dkt. No. 1. Plaintiff's
extended supervision has been revoked three times as a result
of his use of alcohol. He claims that the Department of
Corrections refuses to acknowledge that the sexual assault
occurred and to provide counseling for Plaintiff.
sues Kevin Carr, the Secretary of the Wisconsin Department of
Corrections for monetary damages. “Section 1983 does
not create collective or vicarious responsibility.
Supervisors are not liable for the errors of their
subordinates.” Pacelli v. DeVito, 972 F.2d
871, 877 (7th Cir. 1992). In other words, an individual
cannot be sued for damages under the Constitution unless he
was “personally involved” in the violation.
Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th
Cir. 2017). An individual is not personally involved unless
he participated in the constitutional violation or knew about
the particular conduct at issue and had the ability to stop
it. Id. In this case, the complaint does not allege
facts indicating that Carr was directly or personally
involved in any alleged constitutional violations. In fact,
the complaint fails to allege facts that would support even
an inference that any jail officials had violated his
constitutional rights. There is no allegation, for example,
that guards participated in the assault, or knew it was
likely to occur and failed to protect the plaintiff. And
because the assault is alleged to have occurred almost ten
years ago, any claim would be barred by the applicable
statute of limitations.
Plaintiff had named proper defendants and filed his action
earlier, his complaint would still be dismissed for failure
to state a claim upon which relief can be granted.
Plaintiff's complaint seeks enforcement of the PREA. In
order to seek redress through § 1983, however, “a
plaintiff must assert the violation of a federal right not
merely a violation of federal law.” Blessing v.
Freestone, 520 U.S. 329, 340 (1997). “[W]here the
text and structure of a statute provides no indication that
Congress intends to create new individual rights, there is no
basis for a private suit, whether under § 1983 or under
an implied right of action.” Gonzaga Univ. v.
Doe, 536 U.S. 273, 286 (2002). While the purpose of the
PREA is to reduce the occurrence of rape and sexual abuse in
prisons, nothing in the language of the PREA suggests that
the Act was intended to create a private right of action.
Rivera v. Drake, No. 09-CV-1182, 2010 WL 1172602, at
*3 (E.D. Wis. Mar. 23, 2010). Accordingly, Plaintiff has
failed to state a claim upon which relief can be granted.
plaintiff has provided no arguable basis for relief, having
failed to make any rational argument in law or fact to
support his claims. See House v. Belford, 956 F.2d
711, 720 (7th Cir. 1992) (quoting Williams v.
Faulkner, 837 F.2d 304, 308 (7th Cir. ...