Blackmon v. Baenen et al

Filing 21

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 8/28/2013. 2 MOTION for Leave to Proceed in forma pauperis GRANTED. 6 MOTION for Joinder DENIED as moot. 8 MOTION to Amend/Correct Complaint DENIED as moot. 12 MOTION to waive init ial partial filing fee GRANTED. 13 MOTION to Amend/Correct Court Record DENIED as moot. 15 MOTION to Amend/Correct Complaint GRANTED, proposed Amended Complaint is operative complaint in this action. Action DISMISSED pursuant to 28 USC § 7; 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. Clerk of Court to document that: inmate brought action dismissed for failure to state a claim under 28 USC §§ 1915(e)(2)(B) and 1915A(b)(1); inmate has incurred a "strike&q uot; under 28 USC §1915(g). Plaintiff to pay the $350 balance of filing fee to Clerk of Court. The Court certifies that appeal from this matter would not be taken in good faith pursuant to 28 USC §1915(a)(3) unless Plaintiff offers bona fide arguments supporting appeal (cc: all counsel, via US mail to Michael Blackmon)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL A. BLACKMON,
Plaintiff,
-vs-

Case No.

13-CV-625

MICHAEL BAENEN,
EDWARD F. WALL,
and JANE DOE,
Defendants.

SCREENING ORDER

The plaintiff, a former Wisconsin state prisoner, 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 prisoner lacks the funds
to pay an initial partial filing fee. 28 U.S.C. § 1915(b)(4).
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)).
The plaintiff was incarcerated at Green Bay Correctional Institution (GBCI)
at all times relevant. According to the amended complaint (Docket 15), he sets forth three
separate claims. The plaintiff brings his first claim against defendants GBCI Warden
Michael Baenen, Wisconsin Department of Corrections (DOC) Secretary Edward Wall, and
GBCI Business Office Clerk Jane Doe. He alleges that on March 5, 2013, defendant Jane

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Doe denied his money disbursement request for postage to mail a document in another case.
According to the plaintiff, GBCI policy requires inmates to use the Prisoner E-Filing
Program and the denial of his request to mail his document violates his right to make timely
filings pursuant to the “mailbox rule.” He asserts that because his legal mail was not
approved, the deadline “for producing documents had expired regarding one situation.”
(Compl. at 5.) The plaintiff claims that the defendants violated his right to equal protection
when they required him to file documents pursuant to the Prisoner E-Filing Program. He
seeks compensatory and punitive damages.
The plaintiff brings his second claim against GBCI Warden Michael Baenen,
DOC Secretary Edward Wall, Supervisor Mark Kulieke, and Education Director Mike
Schnieder. He alleges that on May 26, 2013, he submitted two documents to institution staff
to be scanned and e-mailed to the Court pursuant to the Prisoner E-Filing Program. Staff emailed one document on May 29, 2013, and e-mailed the other document on May 30, 2013.
When the plaintiff discovered that his documents were not e-mailed together, he sent an
Interview Request to defendant Schneider complaining that his mail was withheld a day.
Defendant Schneider informed the plaintiff that staff members have three days to e-mail
inmates’ submissions after receipt and that there was no violation. The plaintiff claims that
this policy, in conjunction with the Prisoner E-Filing Program, violates his constitutional
right to equal protection.
The defendants in the plaintiff’s third claim are GBCI Warden Michael Baenen

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and Segregation Captain John Doe. The plaintiff alleges that on July 17, 2013, he received
three pieces of legal mail that were post-marked June 12, 2013. He claims that defendant
John Doe withheld legal mail from him and that, as a result, he was unable to timely respond
to the defendants in another case. The plaintiff claims that his Fourteenth Amendment right
to equal protection was violated because his legal mail not delivered to him in a timely
manner. He seeks monetary damages and injunctive relief.
With regard to the first two claims, the plaintiff’s main complaint is that while
incarcerated at GBCI he was required to submit his documents to the Court pursuant to the
Prisoner E-Filing Program.1 Under the Program, instead of mailing Eastern District of
Wisconsin case filings to the Court and opposing party, an inmate submits his filings to
institution staff, usually the librarian, who scans and e-mails the documents to the Court.
Court staff then electronically file the documents, at which time the opposing party receives
e-mail notification of the filing. Prison staff receive a return receipt via e-mail which is
provided to the inmate as proof that his document was filed.
As an initial matter, the plaintiff’s claim that the Prisoner E-Filing Program
violates his right to equal protection is misplaced. The Program does not prevent inmates
from filing documents with the Court. In fact, it facilitates the process, especially for
indigent inmates, because inmates do not have to purchase postage and envelopes. In short,
the plaintiff does not state a claim that the Prisoner E-Filing Program violates his right to

1

The plaintiff notified the Court on August 18, 2013, that he has been released from prison and resides in
Pleasant Prairie, W isconsin.

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equal protection.
The plaintiff’s allegations in his first two claims may also be construed as
access to the courts claims. However, to state a denial-of-access claim, the plaintiff must
explain “the connection between the alleged denial of access to legal materials and an
inability to pursue a legitimate challenge to a conviction, sentence, or prison conditions,”
Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (internal quotation and citation omitted);
accord Guajardo-Palma v. Martinson, 622 F.3d 801, 805-06 (7th Cir. 2010). This requires
him to identify the underlying claim that was lost. See Christopher v. Harbury, 536 U.S.
403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007). In this case the
plaintiff merely alleges that, as to claim one, the deadline for producing documents expired
and, as to claim two, one of his documents was withheld for one day resulting his two
documents not being filed on the same day. The plaintiff has not identified any underlying
claim that was lost and there is no indication that he was prevented from litigating a nonfrivolous case.
Moreover, the plaintiff’s contention that the Prisoner E-Filing Program
prevents him from benefitting from the “mailbox rule” is also misplaced. Under the mailbox
rule, papers filed by a prisoner are deemed filed on the date they are given to prison
authorities for mailing. See Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001).
The plaintiff has not offered any reason why he could not include a sworn certification as to
the date he submits a document to prison staff for e-mailing under the Prisoner E-Filing

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Program.
Finally, with regard to his third claim, the plaintiff alleges that three pieces of
legal mail, two from the district court and one from the court of appeals, post-marked June
12, 2013, were not delivered to him until July 17, 2013. Although the plaintiff asserts that
the late delivery prevented him from responding to the defendants in a timely manner, he has
not identified the case involved let alone alleged that it was a non-frivolous case that he lost
as a result of the late mail delivery. Thus, he has not stated an access to the courts claim. See
Steidl, 494 F.3d at 633; see also Guajardo-Palma, 622 F.3d at 805-06.
This 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. 1988),
aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)).
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 plaintiff’s motion for joinder (Docket
#6) be and hereby is DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiff’s motion to amend complaint
(Docket # 8) be and hereby is DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiff’s motion to waive initial
partial filing fee (Docket # 12) be and hereby is GRANTED.

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IT IS FURTHER ORDERED that the plaintiff’s motion to amend/correct
record (Docket #13) be and hereby is DENIED AS MOOT.
IT IS FURTHER ORDERED that the plaintiff’s motion to amend complaint
(Docket #15) be and hereby is GRANTED. The proposed amended complaint is the
operative complaint in this action.
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 plaintiff shall pay the $350.00 balance
of the filing fee to the Clerk of Court.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment
accordingly.
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.

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Dated at Milwaukee, Wisconsin, this 28th day of August, 2013.
SO ORDERED,

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

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