Wheeler v. Radtke et al

Filing 13

SCREENING ORDER signed by Judge Lynn Adelman on 5/12/15 granting 7 Motion for Leave to Proceed in forma pauperis; granting 11 Motion to Amend/Correct. The proposed amended complaint is the operative complaint in this action. Further ordering defendants to file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from plaintiffs prison trust account the $334.38 balance of the filing fee as set forth herein. (cc: all counsel, via USPS to plaintiff, Warden-WSPF) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TINGIA D. WHEELER,
Plaintiff,
v.

Case No. 15-CV-95

CAPTAIN CYNTHIA RADTKE,
BRET MIERZEJEWSKI,
and WILLIAM POLLARD,
Defendants.

SCREENING ORDER
The pro se plaintiff, a Wisconsin state prisoner, filed a 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 $15.62.
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
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)).
On February 23, 2015, plaintiff filed a motion to amend the complaint along with a
proposed amended complaint. I will grant this motion and screen the amended complaint.
See Fed. R. Civ. P. 15(a)(1)(A).
Plaintiff alleges that defendants issued him a retaliatory conduct report after he filed
inmate complaints related to a prison investigation. He also alleges that defendants
subsequently interfered with his mail and refused to mail three of his letters. Plaintiff
further alleges that defendants suppressed evidence favorable to him during two
disciplinary hearings on conduct reports. Plaintiff seeks monetary damages, declaratory
relief, and expungement of two conduct reports.
Plaintiff may proceed on retaliation claim with regard to the alleged retaliatory
conduct report as well as First Amendment claims related to his mail. He may also
proceed on due process claims with regard to the hearing on the conduct report.

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ORDER
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 7) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to amend the complaint (ECF No.
11) is GRANTED. The proposed amended complaint is the operative complaint in this
action.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of plaintiff’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice
for service on the state defendants.
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 $334.38
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.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.

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IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, plaintiff
shall submit all correspondence and case filings to institution staff, who will scan and e-mail
documents to the Court. The Prisoner E-Filing Program is in effect at Dodge Correctional
Institution, Green Bay Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility and, therefore, if plaintiff is no longer incarcerated at
one of those institutions, he will be required to submit all correspondence and legal
material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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 12th day of May, 2015.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

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