Thompson-Jones v. Gossage et al

Filing 16

ORDER signed by Judge Rudolph T. Randa on 7/18/2013 GRANTING 2 MOTION for Leave to Proceed in forma pauperis. US Marshal to serve copy of complaint and this Order upon defendants pursuant to FRCP 4. Defendants to file responsive pleading to complai nt. Brown County Sheriff to collect $335.64 balance of filing fee from Plaintiff's prison trust account. (cc: all counsel, via US mail to Michael Thompson-Jones at Brown County Jail; Brown County Sheriff, Corey Finkelmeyer, Asst. Atty. General)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL THOMPSON-JONES,
Plaintiff,
-vs-

Case No.

13-CV-241

SHERIFF GOSSAGE, CAPTAIN MALCOMSON,
LT. STEFFEN, and CHAPLAIN CARRIE,
Defendants.

SCREENING ORDER

The plaintiff, who is confined at the Brown County Jail, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter
comes before the court on the plaintiff’s petition to proceed in forma pauperis. The plaintiff
has been assessed and paid an initial partial filing fee of $14.36.
The 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). 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) (citations omitted).
To 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 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, 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 allegations “must be enough to raise a right to

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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, 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.
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. 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)).
According to the complaint, the plaintiff is confined at the Brown County Jail.
The defendants are Brown County Sheriff Gossage, Captain Malcomson, Lieutenant Steffen,
and Chaplain Carrie. The plaintiff alleges that he is a Hebrew-Israelite and that the
defendants have denied him a Kosher diet because he has not proven that he practices the
faith. According to the plaintiff, pursuant to Brown County Jail policy, he must prove that

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he practices the faith in order to receive a religious diet. While the defendants’ refusal is
based on the allegations that Thompson-Jones doesn’t practice his faith, this defense is more
appropriately raised in a summary judgment motion which will allow for further factual
development. At this stage, Thompson-Jones’ assertion that he is a Hebrew-Israelite and
requires a kosher diet and that the defendants have prevented him from practicing his religion
for about a year is enough. See Maddox v. Love, 655 F.3d 709, 720 (7th Cir. 2011).
The court finds that the plaintiff may proceed against the defendants
individually on a First Amendment free exercise of religion claim based on allegations that
they prevented him from practicing his religion, see Ortiz v. Downey, 561 F.3d 664, 668-69
(7th Cir. 2009). He may also proceed on a Fourteenth Amendment equal protection claim
based on allegations that inmates who practice other religions do not have to prove their faith
in order to practice their religion against the defendants individually, see Vision Church v.
Vill. of Long Grove, 468 F.3d 975, 1000 (7th Cir. 2006). The plaintiff may also proceed
against defendant Sheriff Gossage in his official capacity on both claims, based on the
Brown County Jail’s alleged policy.
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket # 2) be and hereby is GRANTED.
IT IS FURTHER ORDERED that the United States Marshal shall serve a
copy of the complaint and this order upon the defendants pursuant to Federal Rule of Civil
Procedure 4. The plaintiff is advised that Congress requires the U.S. Marshals Service to

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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 the defendants shall file a responsive pleading
to the complaint.
IT IS FURTHER ORDERED that the Brown County Sheriff shall collect
from the plaintiff’s prison trust account the $335.64 balance of the filing fee by collecting
monthly payments from the 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.
IT IS ALSO ORDERED that copies of this order be sent to the Brown County
Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department of
Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:

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Honorable Rudolph T. Randa
% 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.
The 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 filed 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). The plaintiff should also retain a personal copy of each document. If
the 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.
The plaintiff is further advised that failure to make a timely submission may
result in the dismissal of this action for failure to prosecute.
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.

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Dated at Milwaukee, Wisconsin, this 18th day of July, 2013.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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