Maus v. Pollard et al

Filing 5

ORDER that the complaint in this case consists of the original complaint (Docket No. 1) and the supplemental complaint (Docket No. 4); that pursuant to an informal service agreement between the Attorney General and this court, copies of plaintiff 9;s complaint (Docket Nos. 1 and 4) and this order are being sent today to the Attorney General for service on the state defendants. Signed by Judge Rudolph T Randa on 06/03/2010. (cc: all counsel; via US Mail to Brian A Maus; Warden-Green Bay Correctional Institution; AAG Corey F Finkelmeyer)(Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

B R IA N A. MAUS, P l a in tif f ,

-v s-

C a se No.

10-C-97

W I L L IA M POLLARD, PETE ERICKSON, C A P T A IN LESATZ, LT STUTLEEN, LINDMIER, J O H N DOE, Sgt. at the Green Bay Correctional Institution, W A L T O N , SCHILLER, JACK DORUFF, MARK KULIEKE, M PETERS, MICHAEL MOHR, TOM GOZINSKE, A M Y SMITH, SARAH COOPER, CAPTAIN DELVAUX, M IC H A E L SCHULTZ, MICHAEL BAENEN, T H O M A S CAMPBELL, LT. SWIEKATOWSKI, H U C K , NOVITSKI, KAMPHIUS, J U L IE DEROCHA, and ZIMONICH, D e f e n d a n ts .

ORDER

T h e plaintiff, a Wisconsin state prisoner, filed a pro se civil rights complaint u n d e r 42 U.S.C. § 1983, alleging that his civil rights were violated. He has paid the full f ilin g fee. R e g a rd le ss of the plaintiff's fee status, the court is required to screen c o m p l a in t s brought by prisoners seeking relief against a governmental entity or officer or e m p l o ye e of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a c o m p la in t or portion thereof if the prisoner has raised claims that are legally "frivolous or

m alicio u s," 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 f a c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1 9 8 9 ); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, th e re f o re , dismiss a claim as frivolous where it is based on an indisputably meritless legal t h e o ry or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. " M a licio u s," although sometimes treated as a synonym for "frivolous," "is more usefully c o n stru e d as intended to harass." Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2 0 0 3 ) (citations omitted). T o state a cognizable claim under the federal notice pleading system, the p lain tiff is required to provide a "short and plain statement of the claim showing that [he] is e n title d to relief." Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead sp ec if ic facts and his statement need only "give the defendant fair notice of what the . . . c la im is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 5 5 5 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that o f f ers "labels and conclusions" or "formulaic recitation of the elements of a cause of action w ill not do." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting T w o m b ly , 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual m a tte r, accepted as true, "that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting

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T w o m b ly , 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual c o n te n t that allows the court to draw the reasonable inference that the defendant is liable for th e misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint allegations " m u s t be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. a t 555. In considering whether a complaint states a claim, courts should follow the p rin c ip le s set forth in Twombly by first, "identifying pleadings that, because they are no more th a n conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. Ct. at 1950. L e g a l conclusions must be supported by factual allegations. Id. If there are well-pleaded f a ctu a l allegations, the court must, second, "assume their veracity and then determine w h e th e r they plausibly give rise to an entitlement to relief." Id. T o state a claim for relief under 42 U.S.C. § 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 la w . Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing K r a m e r v. Village of North 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 a lle gatio n s, "however inartfully pleaded," a liberal construction. See Erickson v. Pardus, 551 U .S . 89, 127 S. Ct. 2197, 2200 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

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T h e plaintiff is incarcerated at the Green Bay Correctional Institution. He filed th e original complaint on February 4, 2010, in which he alleges that the defendants retaliated a g a in s t him and denied him access to the courts. The defendants in the original complaint a re : Warden William Pollard, Security Director Pete Erickson, Captain Lesatz, Lt. Stutleen, L in d m ie r, Sgt. John Doe, Officer Walton, Officer Schiller, Education Director Jack Doruff, L ib ra ria n Mark Kulieke, Business Office Clerk M. Peters, Complaint Examiner Michael M o h r , Complaint Examiner Tom Gozinske, and Complaint Examiner Amy Smith. The p la in tif f filed an amended complaint on April 21, 2010, in which he alleges that additional d e f en d a n ts have retaliated against him for filing this action. The new defendants are: S e g re g a tio n Unit Manager Sarah Cooper, Captain Delvaux, Captain Michael Schultz, Deputy W a rd e n Michael Baenen, Lt. Thomas Campbell, Lt. Swiekatowski, Mailroom Sgt. Huck, O f f ic e r Novitski, Business Office Manager Kamphuis, Julie Derocha, and Social Worker Z im o n ic k . T h e plaintiff's amended complaint is technically a supplemental complaint and th e court construes it as such. See Fed. R. Civ. P. 15(d) (court may permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after th e date of the pleading to be supplemented); see also Cabrera v. City of Huntington Park, 1 5 9 F.3d 374, 382 (9th Cir. 1998) (per curiam) (erroneously characterizing supplemental p lea d in g as amended pleading is immaterial). The original and supplemental complaints will b e considered together as the complaint.

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T h e court finds that the plaintiff may proceed on retaliation and access to the c o u rts claims. The plaintiff will need to use discovery to identify the John Doe defendant. I T IS THEREFORE ORDERED that the complaint in this case consists of the original complaint (Docket No. 1) and the supplemental complaint (Docket No. 4). I T IS FURTHER ORDERED that pursuant to an informal service agreement b e t w e e n the Attorney General and this court, copies of plaintiff's complaint (Docket Nos. 1 and 4) and this order are being sent today to the Attorney General for service on the state d e f e n d a n t s. I T IS ALSO ORDERED that the defendants shall file a responsive pleading to the complaint. I T IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney G e n e ra l, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 537077857. I T IS FURTHER ORDERED that the plaintiff shall submit all c o rre sp o n d e n c e and legal material to: H o n o ra b le Rudolph T. Randa % Office of the Clerk U n i te d States District Court E a ste rn District of Wisconsin 3 6 2 United States Courthouse 5 1 7 E. Wisconsin Avenue M ilw a u k e e, Wisconsin 53202

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P L E A S E DO NOT MAIL ANYTHING DIRECTLY TO THE COURT'S CHAMBERS. It w ill only delay the processing of the matter. T h e plaintiff is hereby notified that he is required to send a copy of every paper o r document filed with the court to the opposing parties or their attorney(s). Fed. R. Civ. P. 5 (a ). The plaintiff should also retain a personal copy of each document. If the plaintiff does n o t have access to a photocopy machine, he may send out identical handwritten or typed c o p ie s of any documents. The court may disregard any papers or documents which do not ind icate that a copy has been sent to each defendant or to their attorney(s). T h e plaintiff is further advised that failure to make a timely submission may re su lt in the dismissal of this action for failure to prosecute. I n addition, the parties must notify the Clerk of Court of any change of address. F a ilu re to do so could result in orders or other information not being timely delivered, thus a f f e c t in g the legal rights of the parties. D a te d at Milwaukee, Wisconsin, this 3rd day of June, 2010. S O ORDERED, s / Rudolph T. Randa H O N . RUDOLPH T. RANDA U . S. District Judge

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