Hiler v. Pollard et al

Filing 19

DECISION AND ORDER DENYING plaintiffs motion for leave to proceed in forma pauperis 2 . Further ordering that plaintiffs motion for extension of time to pay initial partial filing fee 9 is DENIED AS MOOT. Further ordering that plaintiffs motion to properly state fact 12 is DENIED AS MOOT. Further ordering that this action is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915A(b)(1, that the Clerk of Court document this fact together with the fact that this inmate has incurred a str ike under 28 U.S.C. § 1915(g). Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from plaintiffs trust account the $349.00 balance of the filing fee as set forth herein signed by Judge Lynn Adelman on 4/14/15. (cc: all counsel, via USPS to plaintiff, Warden-WCI) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAQUAY HILER,
Plaintiff,
v.

Case No. 14-CV-1543

WILLIAM POLLARD, DR. MARTHA J. BREEN,
OFFICER TILST, PETER ERICKSON,
MARK ZIMONICK, JEAN LUTSEY,
OFFICER FORD, OFFICER FUTHER,
LT. SWIEKATAWSKI, SGT. HAMILTON,
OFFICER WISNIEWOSKI, LT. LESATZ,
CAPTAIN LAURENT, OFFICER JONATHAN BATE,
OFFICER WALTON, SGT. SCHUH,
OFFICER WELCH, OFFICER BOUCHONVILLE,
SGT. RITZLAFF, and CAPTAIN SCHULTZ,
Defendants.

SCREENING ORDER
The pro se plaintiff, JaQuay Hiler, is a Wisconsin state prisoner. He has filed a civil
rights action pursuant to 42 U.S.C. § 1983 along with a petition for leave to proceed in
forma pauperis.

Plaintiff has paid a $1.00 initial partial filing fee.

See 28 U.S.C.

§ 1915(b)(1).
Under the Prison Litigation Reform Act, a prisoner may not bring a civil action or
appeal a civil judgment in forma pauperis,
if the prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the United
States that was dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted, unless the prisoner
is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). Plaintiff has accumulated three “strikes,” as follows: (1) Hiler v.
Ericksen, Case No. 08-CV-821-LA (E.D. Wis.), dismissed for failure to state a claim on
April 21, 2008; (2) Hiler v. Pollard, Case No. 08-CV-736-LA (E.D. Wis.), dismissed as
frivolous on December 3, 2008; and (3) Hiler v. Taylor, Case No. 08-CV-333-SLC (W.D.
Wis.), dismissed as frivolous on July 18, 2008. Because plaintiff has previously filed at
least three actions which were dismissed as frivolous, malicious, or for failure to state a
claim, his request to proceed in forma pauperis on appeal will be denied.
Nevertheless, plaintiff incurred the filing fee by filing the complaint. Newlin v.
Helman, 123 F.3d 429, 433-34 (7th Cir. 1997), rev’d on other grounds by, Walker v.
O’Brien, 216 F.3d 626 (7th Cir. 2000) and Lee v. Clinton, 209 F.3d 1025 (7th Cir. 2000).
The fact that I am denying plaintiff’s request to proceed in forma pauperis would ordinarily
mean that the full filing fee of $350.00 would be due within fourteen days of this order.
Newlin, 123 F.3d at 434.
However, even if plaintiff paid the full filing fee, I would not allow his complaint to
proceed. 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. § 1915(A)(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 v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore,
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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) (citation
omitted).
Plaintiff’s complaint is based on his stay in Green Bay Correctional Institution’s
segregation unit in 2005. He has raised these allegations in prior complaints and courts
previously deemed them frivolous. In this complaint, he alleges:
My imminent danger of death or serious bodily injury is defendants
emerged evil and hate toward plaintiff nerve racking screaming obscenities
uncontrollable. And toward plaintiff overactive sexual imagination that
associate in sexual interact with himself. During plaintiff stay at Green Bay
Correctional Institution segregation unit January 6, 2005, through May 26,
2005. Defendants w[ere] aware that complicated medical procedures w[ere]
done to keep plaintiff at his misery. Leave plaintiff incapable of realizing and
making rational decisions of meet ordinary demand of life institution. And
while at other Wisconsin institutions. Also while out custody of Department
Correction. So defendants w[ere] aware or participate in den[ying] plaintiff
four and half months of outside recreation. To torture plaintiff explicit and
embarrassing ways. And sexual torture plaintiff explicit and embarrassing
ways. Without my consent or knowledge I plaintiff swallowed more than one
Robotic Capsule Device during stay at Green Bay Correctional Institution
segregation unit.
(Compl. ¶ IV.A.)1 Plaintiff claims that defendants conspired to endanger his safety. He
requests that the court order a physical examination to determine what is in his body.
Plaintiff also seeks an investigation into the cover-up at Green Bay Correctional Institution’s

1

On March 4, 2015, plaintiff filed a motion to properly state plaintiff’s facts. In this
document, plaintiff provides details of his 2005 stay in the segregation unit as well as the
implantation of the Robotic Capsule Device in his body.
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segregation unit and removal from Wisconsin Department of Corrections custody during
the investigation.
“A claim is factually frivolous if its allegations are bizarre, irrational or incredible.”
Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007) (citing Gladney v. Pendleton Corr.
Facility, 302 F.3d 773, 774 (7th Cir. 2002)); cf. Neitzke, 490 U.S. at 327 (a claim is factually
frivolous under § 1915 if it is “clearly baseless”); Denton, 504 U.S. at 33 (explaining that
a “finding of factual frivolousness is appropriate when the facts alleged rise to the level of
the irrational or wholly incredible”).
As indicated, plaintiff has previously filed lawsuits regarding these allegations,
although he referred to the implantation of a “20/20 Neural Chip” in those cases, instead
of the “Robotic Capsule Device” he references in this case.2 The allegations were found
to be frivolous in the prior cases. I once again conclude that these allegations are factually
frivolous. Consequently, plaintiff’s complaint will be dismissed.
CONCLUSION
THEREFORE, IT IS ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 2) is DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for extension of time to pay initial
partial filing fee (ECF No. 9) is DENIED AS MOOT.
IT IS FURTHER ORDERED that plaintiff’s motion to properly state fact (ECF No.
12) is DENIED AS MOOT.

2

Plaintiff made these allegations in Hiler v. Pollard, 07-CV-863-LA (E.D. Wis.), Hiler
v. Pollard, 08-CV-736-LA (E.D. Wis.), and Hiler v. Taylor, 08-CV-333-SLC (W.D. Wis.).
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IT IS FURTHER ORDERED that this action is DISMISSED as frivolous pursuant to
28 U.S.C. § 1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
brought an action that was dismissed as frivolous under 28 U.S.C. § 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 trust account the $349.00 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 FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS FURTHER ORDERED that a copy of this order be sent to the Warden of
Waupun Correctional Institution.
Dated at Milwaukee, Wisconsin, this 15th day of April, 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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