Glover v. Dickey et al

Filing 10

ORDER signed by Judge Lynn Adelman on 4/16/14 granting 2 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. Further ordering that plaintiffs request for preliminary injunction is DENIED. Further ordering that d efendants Steven Wierenga, Judy P. Smith, and Douglas LaFollette are DISMISSED. Further ordering that a copy of plaintiffs complaint and this order are being electronically sent to the Wisconsin Department of Justice for service on the state defenda nt and ordering defendant to file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. Finally ordering that the Secretary of the Wisconsin Department of Corrections or his designee shall collect from plaintiffs prison trust account the $333.34 balance of the filing fee as set forth in the order. (cc: all counsel, via USPS to plaintiff, Warden-OCI) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RICARDO GLOVER,
Plaintiff,
v.

Case No. 14-CV-87

PSY D. JONATHON DICKEY, STEVEN WIERENGA,
JUDY P. SMITH, and DOUGLAS LAFOLLETT,
Defendants.

SCREENING ORDER
Plaintiff, a 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
plaintiff’s petition to proceed in forma pauperis. He has been assessed and paid an initial
partial filing fee of $16.66.
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, 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
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

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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 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 is incarcerated at Oshkosh Correctional Institution (OSCI). He alleges that
defendant Jonathon Dickey who is the psychologist supervisor at OSCI, denied plaintiff’s
request to participate in Sex Offender Treatment-2, a treatment program required before
parole. According to plaintiff, defendant Dickey’s refusal to permit plaintiff to enroll in the
program was discriminatory and without rational basis because he required that plaintiff
satisfy additional criteria which were not required of other inmates. (Compl. at 5 ¶ 6.) He
claims that defendants violated his right to equal protection under the “class of one” theory.
For relief, plaintiff seeks monetary damages, declaratory relief, and a permanent injunction.
Plaintiff may proceed on an equal protection class of one claim against defendant
Dickey. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Swanson v. City
of Chetek, 719 F.3d 780, 784 (7th Cir. 2013). However, he does not allege that the other
defendants – OSCI Deputy Warden Steven Wierenga, OSCI Warden Judy Smith, Douglas

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LaFollette1 – were personally involved in his claim. Therefore, they will be dismissed. See
Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009).
PLAINTIFF’S REQUEST FOR PRELIMINARY INJUNCTION
Plaintiff seeks a preliminary injunction ordering defendants to stop discriminating
against him and, to strike the sex offender treatment as a need for his treatment or allow
him in the program to tell the truth about the facts surrounding his sexual assault
conviction.

A party seeking a preliminary injunction must demonstrate that he is

reasonably likely to succeed on the merits, that he is experiencing irreparable harm that
exceeds any harm his opponent will suffer if the injunction issues, that he lacks an
adequate remedy at law, and that the injunction would not harm the public interest.
Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). “If the moving party
meets this threshold burden, the district court weighs the factors against one another in a
sliding scale analysis . . . which is to say the district court must exercise its discretion to
determine whether the balance of harms weighs in favor of the moving party or whether
the nonmoving party or public interest will be harmed sufficiently that the injunction should
be denied. Id.; see Joelner v. Vill. of Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004).
Here, plaintiff alleges that defendant denied his request to participate in the
treatment program without a rational basis and set forth additional criteria he must satisfy
before enrolling such as a more recent parole recommendation for the program and
acceptance of responsibility for his crime. Plaintiff also alleges that other offenders similar
to him were permitted to enroll without having to satisfy the additional criteria. Without
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Plaintiff refers to Douglas LaFollette as the Secretary of the Department of
Corrections, however, he is the Secretary of State of Wisconsin.
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having heard from defendant, the court will not rule that defendant’s alleged criteria are
irrational. Thus, I find, at this stage of the proceedings, that plaintiff has not demonstrated
a reasonable likelihood of success on the merits and his request for a preliminary injunction
will be denied.
PLAINTIFF’S MOTION TO APPOINT COUNSEL
Plaintiff has filed a motion to appoint counsel. The court has discretion to recruit
counsel to represent a litigant who is unable to afford one in a civil case. Navejar v. Iyiola,
718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. § 1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). As a threshold matter, litigants must make a
reasonable attempt to secure private counsel on their own. Pruitt v. Mote, 503 F.3d 647,
653 (7th Cir. 2007). If the plaintiff makes a reasonable attempt to secure counsel, the
court must examine “whether the difficulty of the case – factually and legally – exceeds the
particular plaintiff’s capacity as a layperson to coherently present it.” Navejar, 781 F.3d at
696 (citing Pruitt, 503 F.3d at 655). This inquiry focuses not only the plaintiff’s ability to try
his case, but also includes other “tasks that normally attend litigation” such as “evidence
gathering” and “preparing and responding to motions.” Id.
In this case, plaintiff has provided evidence that he has attempted to obtain legal
counsel on his own.

However, the issues in this case appear at this stage to be

straightforward and uncomplicated. Moreover, plaintiff’s filings indicate that he is capable
of litigating this case himself. Therefore, at this time, the court does not believe that the
presence of counsel is likely to make a difference in the outcome of this case. Accordingly,
plaintiff’s request for appointment of counsel is denied.

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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 request for preliminary injunction is
DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket 4) is
DENIED.
IT IS FURTHER ORDERED that defendants Steven Wierenga, Judy P. Smith, and
Douglas LaFollette are DISMISSED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, a copy of plaintiff’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice
for service on the state defendant.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this court, defendants shall file a responsive
pleading to the complaint within sixty days of receiving electronic notice of this order.
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 $333.34
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.

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IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined.
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). 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.
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 16th day of April, 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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