Harris v. Superintendent Milwaukee County Correctional Facility-South et al

Filing 9

ORDER signed by Judge Lynn Adelman on 12/19/11 granting 2 Motion for Leave to Proceed in forma pauperis; denying as moot 7 Motion for Order Directing Payment. Further ordering that David A. Clarke, Jr. is DISMISSED as a defendant in this acti on and the United States Marshal shall serve a copy of the complaint, summons and this order upon defendant Salsbury. Further ordering defendants to file a responsive pleading to the complaint. Further ordering the Secretary of the Wisconsin Dept. of Corrections to collect $297.88 from plaintiff's prison trust account as specified herein. (cc: all counsel, via USPS to plaintiff, Warden-KMCI, AAG Corey Finkelmeyer) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ORBIN B. HARRIS,
Plaintiff,
v.

Case No. 11-CV-872

SUPERINTENDENT MILWAUKEE COUNTY CORRECTIONAL FACILITY - SOUTH,
D. SALSBURY, and
DAVID A. CLARKE, JR.,
Defendants.

ORDER
Plaintiff, Orbin B. Harris, a state prisoner, filed a pro se civil rights 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 in forma pauperis, his motion for order
directing payment of initial partial filing fee from plaintiff’s prison release account, and for
screening of plaintiff’s complaint.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28
U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can
request leave to proceed in forma pauperis. 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 $52.12. I will grant plaintiff’s motion for leave to proceed in forma
pauperis.
Plaintiff filed a motion for order directing payment of initial partial filing fee from
plaintiff’s prison release account, but subsequently paid the initial partial filing fee. Because
his initial partial filing fee has been paid, this motion is moot.

I am 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).
I 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).
To 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). It is not necessary for 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels
and conclusions” or “formulaic recitation of the elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (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.” Iqbal, 129 S. Ct. at 1949 (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 allegations “must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted).
In 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, 129 S. Ct. at 1950. Legal

2

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.
To state a claim for relief under 42 U.S.C. § 1983, 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
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 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)).
Plaintiff was criminally charged with intimidation of a witness in Milwaukee County
Case Number 08-CF-4359. On September 2, 2008, while plaintiff was a pretrial detainee
at the Milwaukee County Correctional Facility - South, a Milwaukee County judge entered
an order directing that plaintiff have no contact, by telephone, visitation, or mail, with the
alleged victim in the witness intimidation case.
When the Superintendent of the correctional facility and D. Salsbury received the
order, they placed plaintiff in punitive segregation. Plaintiff was given no opportunity to be
heard in opposition to his placement in punitive segregation, and he remained there for
seven months. He was not able to correspond with his family or his attorney because he
was not allowed to purchase postage. He also was denied outdoor exercise, law library
access, newspapers and other publications, and all visitation rights. Plaintiff acknowledges
defendants’ need to enforce the no contact order, but he alleges that they extended the
breadth of the order and applied it in an unconstitutional manner. He asserts that his

3

placement in punitive segregation constituted punishment and was foisted upon him without
due process of law.
“[A]lthough being placed in segregation is too trivial an incremental deprivation of a
convicted prisoner’s liberty to trigger the duty of due process, a number of cases . . .
consider any nontrivial punishment of a person not yet convicted a sufficient deprivation of
liberty to entitle him to due process of law.” Holly v. Woolfolk, 415 F.3d 678, 679-80 (7th Cir.
2005) (internal citations omitted). In Holly, the Seventh Circuit Court of Appeals affirmed the
dismissal of a complaint where a pretrial detainee was placed in segregation for two days
without a prior hearing. Id. at 680-81. However, in doing so, the court acknowledged cases
in which a hearing was required, but where the pretrial detainee had been in segregation far
longer than two days. Id. at 681 (citing Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002); Rapier
v. Harris, 172 F.3d 999, 1002-05 (7th Cir. 1999)).
According to plaintiff, he was a pretrial detainee who was placed in punitive
segregation for seven months without any due process. At this stage, plaintiff may proceed
on a Fourteenth Amendment Due Process claim against defendant Salsbury and the
unidentified defendant who was Superintendent of the Milwaukee County Correctional
Facility - South when plaintiff was placed in segregation.
Plaintiff also contends that his placement in segregation violated: (1) his First
Amendment rights because he was unable to correspond with his family; (2) his First
Amendment rights because he was deprived of newspapers and other publications; (3) his
rights under the First and Sixth Amendments because he could not purchase postage and,
as a result, could not correspond with his attorney; (4) his rights under the Eighth and
Fourteenth Amendments because he was denied all outdoor exercise for seven months; and

4

(5) his right to access the courts because he had no access to the law library for seven
months.
Plaintiff’s first three claims implicate his First Amendment rights, and he will be
allowed to proceed on those claims against defendants Salsbury and the Superintendent.
I also will allow plaintiff to proceed on a conditions of confinement claim under the
Fourteenth Amendment against the same defendants regarding the denial of outdoor
exercise.
However, I will not allow plaintiff to proceed on an access to the courts claim. “[T]o
state a right to access-to-courts claim and avoid dismissal under Rule 12(b)(6), a prisoner
must make specific allegations as to the prejudice suffered because of the defendants’
alleged conduct.” Ortloff v. United States, 335 F.3d 652, 656 (7th Cir. 2003). Plaintiff has
not identified any harm he suffered in any active case due to his inability to access the law
library.
Plaintiff will have to use discovery to determine the identity of the Superintendent and
ask the court to substitute a name for Superintendent. If plaintiff is unable to identify the
Superintendent, his claims against that individual may be subject to dismissal.
Plaintiff has not stated a claim against Sheriff David A. Clarke, Jr. Government
officials may not be held liable under § 1983 for unconstitutional conduct of their
subordinates under theory of respondeat superior; because vicarious liability is inapplicable,
plaintiff must plead that each government official-defendant, through his or her own actions,
has violated the Constitution. Iqbal, 556 U.S. 662, 129 S. Ct. at 1948. Plaintiff has made
no allegations of personal involvement by Sheriff Clarke.
Therefore,

5

IT IS THEREFORE ORDERED that plaintiff's motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff's motion for order directing payment of initial
partial filing fee from plaintiff’s prison release account (Docket #7) is DENIED AS MOOT.
IT IS FURTHER ORDERED that David A. Clarke, Jr. is DISMISSED as a defendant
in this action.
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the
complaint, the summons, and this order upon the defendant Salsbury pursuant to Federal
Rule of Civil Procedure 4. Plaintiff is advised that Congress requires the U.S. Marshals
Service to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current
fee for waiver-of-service packages is $8.00 per item mailed. The full fee schedule is
provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order
service by the U.S. Marshals Service precisely because in forma pauperis plaintiffs are
indigent, it has not made any provision for these fees to be waived either by the court or by
the U.S. Marshals Service.
IT IS ALSO ORDERED that defendants shall file a responsive pleading to the
complaint.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from plaintiff's prison trust account the $297.88
balance of the filing fee by collecting monthly payments from 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 the 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.
6

IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney
General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 537077857.
IT IS FURTHER ORDERED that plaintiff shall submit all correspondence and legal
material to:
Honorable Lynn Adelman
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Plaintiff is notified that from now on, he is required under Federal Rule of Civil
Procedure 5(a) to send a copy of every paper or document with the court to the opposing
party or, if the opposing party is represented by counsel, to counsel for that party. Fed. R.
Civ. P. 5(b). Plaintiff should also retain a personal copy of each document. If plaintiff does
not have access to a photocopy machine, he may send out identical handwritten or typed
copies of any documents. The court may disregard any papers or documents which do not
indicate that a copy has been sent to the opposing party or that party’s attorney, if the party
is represented by an attorney.
Plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.

7

In addition, the parties must notify the Clerk of Court of any change of address.
Failure to do so could result in orders or other information not being timely delivered, thus
affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 19th day of December 2011.
s/
LYNN ADELMAN
District Judge

8