Werner v. Gossage et al

Filing 9

ORDER signed by Chief Judge Charles N. Clevert, Jr on 6/11/2012 Granting 2 Motion for Leave to Proceed in forma pauperis; Denying 4 Motion to Appoint Counsel; DISMISSING this action pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)( 1) for failure to state a claim; Clerk of Court is to document that this inmate has brought action that was dismissed for failure to state a claim and has incurred a "strike" under 28 U.S.C. §1915(g); WI-DOC to collect from prisoners t rust account remainder of filing fee; and Certifying that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his appeal. (cc: all counsel, via US Mail to Plaintiff; Warden-DCI; and Corey Finkelmeyer, WI-DOJ ) (nts)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PATRICK JAMES WERNER,
Plaintiff,
v.

Case No. 12-cv-0380

JOHN GOSSAGE,
TODD DELAIN,
LARRY MALCOMSON,
CORPORAL LANGAN,
C. PATTERSON,
R. LEYENDECKER,
A. PAULS, and
CORPORAL TRINKNER,
Defendants.

DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DOC 2), DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO APPOINT COUNSEL (DOC 4) AND
DISMISSING PLAINTIFF’S COMPLAINT
This matter comes before the court on plaintiff's motion for leave to proceed in forma
pauperis, plaintiff’s motion to appoint counsel and for screening the complaint. Plaintiff has
paid the initial partial filing fee as assessed. Now, therefore, the court is required to screen
his pro se prisoner complaint which seeks relief against officers or employees of a
governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss the complaint or
portion thereof if plaintiff raises claims that are legally "frivolous or malicious," that fail to
state a claim upon which relief may be granted, or that seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
To assert 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
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, 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.

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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 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)).
On February 5, 2012, while he was housed at the Brown County Jail, plaintiff
requested copies of Black’s Law Dictionary and the Wisconsin Lawyer Directory. Corporal
Langan responded to plaintiff that the jail did not have the materials and was unable to
provide them. Afterward, plaintiff filed a grievance which was denied as unfounded.
However, plaintiff was advised that state statutes and excerpts from the state
administrative code were available and that specific cases could be provided at the cost
of 25 cents per page.
Later, plaintiff requested the Department of Community Corrections manual and was
informed that only Chapter 4 was available and that other portions of the manual were not
on hand. Plaintiff responded by filing a grievance which was denied and closed with the
statement that the Brown County Jail does not have access to a full legal library and that
he will need to narrow the scope of his request to a portion of the manual that he needs.
Plaintiff appealed this decision which was denied with the explanation that an inmate
represented by an attorney can have the lawyer provide copies of legal documents and
that otherwise the inmate must pay 25 cents per page for legal materiels. The table of
contents for the Department of Community Corrections manual accompanied the decision.
Lastly, plaintiff noted overcharging at the commissary and discriminatory acts concerning

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some commissary items such as an indigent pack that includes soap, shampoo and tooth
paste.
Taking all of the plaintiff’s assertions into account, it appears that the complaint is
challenging the adequacy and sufficiency of the law library at the Brown County Jail.
However, this claim cannot succeed without a showing of actual injury. There is no
“abstract, freestanding right to a law library . . . [and] . . . an inmate cannot establish
relevant actual injury simply by establishing that his prison’s law library or legal assistance
program is sub-par in some theoretical sense.” Lewis v. Casey, 518 U.S. 343, 351 (1996).
To establish a violation of the right to access to the courts, an inmate must establish that
jail officials failed to provide the assistance required by Bounds v. Smith, 430 U.S. 817, 828
(1977) (“[T]he fundamental constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance from persons
trained in the law.”)

However, an inmate also must “demonstrate that the alleged

shortcomings in the library . . . hindered his efforts to pursue a legal action.” Lewis, 518
U.S. at 351. The actual-injury requirement applies even in cases “involving substantial,
systematic deprivation of access to court,” including the “total denial of access to a library,”
or “an absolute deprivation of access to all legal materials.” Id. at 353, n 4 (emphasis in
original). Thus, even if the inmate can establish an “absolute deprivation of access to all
legal materials,” id., his claim will fail absent identification of some injury linked to the
deprivation. For these reasons, plaintiff may not proceed in this case because he has
failed to identify any claim that was compromised or lost due to the alleged inadequate

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library at the Brown County Jail. See Christopher v. Harbury, 536 U.S. 403, 414 (2002).
Therefore,
IT IS ORDERED that plaintiff’s motion for leave to proceed in forma pauperis (DOC
2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (DOC 4) is
DENIED AS MOOT.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
brought an action that was dismissed for failure to state a claim under 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
incurred a "strike" under 28 U.S.C. §1915(g).
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 $320.00
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 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.
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

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General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good
faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments
supporting his appeal.
Dated at Milwaukee, Wisconsin, this 11th day of June, 2012.
BY THE COURT

/s/ C. N. Clevert, Jr.
C. N. CLEVERT, JR.
Chief U.S. District Judge

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