Thomas v. Morris et al
Filing
8
ORDER signed by Judge Rudolph T. Randa on 9/21/2015. 2 Thomas' MOTION for Leave to Proceed in forma pauperis GRANTED; Thomas' request for Preliminary Injunction DENIED; Defendant Kevin Galaske DISMISSED; 5 Thomas' MOTION to Appoint Counsel DENIED without prejudice. Defendants Morris, Harris, and Gross to respond to amended complaint within 60 days. US Marshal to serve copy of amended complaint and this Order on Defendants Waldinschmidt and Steberg pursuant to FRCP 4; Waldinsch midt and Steberg to respond to amended complaint. Sheriff of Fond du Lac County to collect $350 balance of filing fee from Thomas' prison trust account. (cc: all counsel, via mail to Elijah Thomas at Fond du Lac County Jail, Sheriff of Fond du Lac County)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ELIJAH G. THOMAS,
Plaintiff,
-vs-
Case No. 15-CV-348
BRANDEE MORRIS,
KEVIN GALASKE,
RYAN WALDINSCHMIDT,
MARY STEBURG,
DONNA HARRIS, and
ERIC GROSS,
Defendants.
DECISION AND ORDER
The plaintiff, Elijah Thomas, who is incarcerated at the Fond du Lac
County Jail, filed a pro se complaint under 42 U.S.C. § 1983, alleging that
his civil rights were violated by employees of the Wisconsin Department of
Corrections and the Fond du Lac County Jail. This matter comes before
the Court on the plaintiff's motion for leave to proceed in forma pauperis,
the plaintiff’s motion to appoint counsel, and for screening of the plaintiff’s
amended complaint.1
The plaintiff filed his original complaint on March 30, 2015. On April 27, 2015,
the plaintiff filed an Amended Complaint. A party may amend its pleading once as a
matter of course, Fed. R. Civ. P. 15(a)(1), so the Court will proceed to screen the
plaintiff’s amended complaint.
1
I. MOTION FOR LEAVE 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 will grant his motion for leave to proceed in
forma pauperis.
II. SCREENING
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) (quoting
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
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harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003).
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 Atl. 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 ‘a 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.
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings
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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)).
A.
Complaint Allegations
The plaintiff is currently incarcerated at the Fond du Lac County
Jail. He is suing Donna Harris, Brandee Morris, Kevin Galaske, Ryan
Waldinschmidt, Mary Steburg, and Eric Gross, all of whom are employees
of the Wisconsin Department of Corrections or the Fond du Lac County
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Jail.
The plaintiff seeks declaratory relief, injunctive relief, and
compensatory damages.
In his amended complaint, the plaintiff alleges that beginning on
August 15, 2014, the Fond du Lac County Jail began intercepting his mail
without his knowledge or consent. Specifically, jail officials—at the request
of defendant Morris, the plaintiff’s parole officer—confiscated several
letters that were written to the plaintiff by Hlee Cruckson. The plaintiff
alleges that he complained to defendants Gross and Harris about his mail
being intercepted, and they each informed him that his complaints were
not justified because Morris was authorized to read Thomas’ mail pursuant
to Wisconsin Administrative Code DOC § 328.22(7)(c). The plaintiff filed
an inmate grievance and an appeal regarding the allegations of confiscated
mail. Defendants Steburg and Waldinschmidt informed the plaintiff that
he would be notified in the future when his mail was being held.
The
plaintiff also alleges that certain jail officials failed to honor his food
requests concerning the April 2015 Passover holiday.
The plaintiff purports to state First, Fourth, and Fifth Amendment
claims against defendants Morris, Gross, and Harris with respect to his
mail being confiscated without authorization or notification. (Am. Compl.
¶¶ 39-40.) He further alleges that defendants Galaske, Waldinschmidt,
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and Steburg were aware of the situation, but they failed to notify him that
his mail was being confiscated.
(Am. Compl. ¶ 37.)
The plaintiff also
alleges that defendants Galaske, Waldinschmidt, and Steburg violated his
First Amendment right to exercise his religion and that these defendants
failed to honor his religious requests in retaliation for his filing the present
lawsuit. (Am. Compl. ¶ 38.)
B.
Personal Involvement
At the outset, the Court notes that the plaintiff has not alleged any
personal involvement by defendant Galaske. The allegation that Galaske
was “made aware of the situation,” (Am. Compl. ¶ 37), is insufficient to
state a claim against Galaske for depriving him of a constitutional right.
Accordingly, because the plaintiff has failed to state a claim against him,
Galaske will be dismissed as a defendant in this lawsuit. See Burks v.
Raemisch, 555 F.3d 592, 593-94 (7th Cir. 2009) (holding that § 1983 does
not establish a system of vicarious liability).
C.
Mail
Claims that prison officials interfered with an inmate’s ability to
send and receive mail are properly analyzed under the First Amendment. 2
Because prisoners have no expectation of privacy with respect to their property,
the plaintiff has failed to articulate a viable Fourth Amendment claim. See Hudson v.
Palmer, 468 U.S. 517, 525-30 (1984); Sparks v. Stutler, 71 F.3d 259, 260 (7th Cir. 1995).
2
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See Martin v. Brewer, 830 F.2d 76, 77-78 (7th Cir. 1987); Koutnik v. Brown,
396 F. Supp. 2d 978, 983 (W.D. Wis. 2005). “[P]risoners have protected
First Amendment interests in both sending and receiving mail.” Rowe v.
Shake, 196 F.3d 778, 782 (7th Cir. 1999); Kaufman v. McCaughtry, 419
F.3d 678, 685 (7th Cir. 2005). These interests are limited, however, by “the
legitimate governmental interest in the order and security of penal
institutions.”
Koutnik, 396 F. Supp. 2d at 983 (quoting Procunier v.
Martinez, 416 U.S. 396, 412-13 (1974)); see also Martin, 830 F.2d at 77-78.
Consequently, restrictions on a prisoner’s receipt of nonlegal mail must be
“reasonably related to legitimate penological interests.” Koutnik, 396 F.
Supp. 2d at 983-94 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); Rowe,
196 F.3d at 782.
In this case, whether the restrictions placed on the plaintiff’s mail
were reasonably related to a legitimate penological interest remains to be
seen. In other words, it would be premature for the Court to make such a
determination at the pleading stage.
Accordingly, the plaintiff will be
allowed to proceed with a First Amendment claim against defendant
Morris, who allegedly confiscated his nonlegal mail, and defendants Gross,
Harris, Steburg, and Waldinschmidt, who allegedly denied the plaintiff’s
The Court is unable to discern any viable Fifth Amendment claim.
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inmate complaints, grievances, and/or appeals regarding his mail being
confiscated without authorization or notification.
D.
Religion
Consistent with the Free Exercise Clause of the First Amendment,
“[p]risons must permit inmates the reasonable opportunity to exercise
religious freedom.” Maddox v. Love, 655 F.3d 709, 718-19 (7th Cir. 2011).
“However, prison restrictions that infringe on an inmate’s exercise of his
religion are permissible if they are reasonably related to a legitimate
penological objective, such as security and economic concerns.” Id. (citing
Turner, 482 U.S. at 89-91); see also Al-Alamin v. Gramley, 926 F.2d 680,
687 (7th Cir. 1991) (holding that prison officials “need make only
reasonable efforts to afford . . . inmates an opportunity to practice their
faith”).
As stated above, it would be premature for the Court to determine at
this early stage whether a legitimate penological objective existed for the
restriction on the plaintiff’s constitutional right. Accordingly, the plaintiff
will be allowed to proceed with a First Amendment claim against
defendants Waldinschmidt and Steburg, who allegedly denied his inmate
complaints, grievances, and/or appeals regarding his requests for the
Passover holiday.
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E.
Retaliation
To state a claim of retaliation, the plaintiff must allege that “(1) he
engaged in activity protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity in the future;
and (3) the First Amendment activity was ‘at least a motivating factor’ in
the Defendants’ decision to take the retaliatory action.” Gomez v. Randle,
680 F.3d 859, 866 (7th Cir. 2012) (quoting Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009)).
The Court finds that the plaintiff will not be allowed to proceed with
a retaliation claim against any defendants. The plaintiff’s “belief” that
the defendants’ failure to honor his requests concerning Passover “had
something to do with [his] fileling [sic] a 42 U.S.C. 1983 lawsuit,” (Am.
Compl. ¶ 30), is insufficient to raise a right to relief above the speculative
level. See Twombly, 550 U.S. at 555. Moreover, most of the plaintiff’s
allegations concerning Passover occurred before the plaintiff filed the
present lawsuit on March 30, 2015. For example, on January 26, 2015,
defendant Waldinschmidt denied the plaintiff’s inmate appeal, finding that
his requests were “too vague.” (Am. Compl., Ex. M.) Thus, the plaintiff’s
complaint does not raise a plausible link between the protected activity and
his alleged deprivation.
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F.
Injunctive Relief
In his amended complaint, the plaintiff seeks a preliminary
injunction ordering the defendants to stop confiscating his mail and to
cease retaliating against him. (Am. Compl. ¶ 42.)
To obtain preliminary injunctive relief, whether through a TRO or
preliminary injunction, the plaintiff must show that: (1) his underlying
case has some “likelihood of success on the merits”; (2) no adequate remedy
at law exists; and (3) he will suffer “irreparable harm” without the
injunction. Wood v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If the plaintiff
demonstrates all three requirements, the Court must then balance the
harm to each party and to the public interest from granting or denying the
injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper
v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
The Court finds that the plaintiff has failed to satisfy the above
standard. First, the Court has already determined that the plaintiff will
not be allowed to proceed with a retaliation claim. Second, at this early
stage—and with no response from the defendants—the plaintiff has not
established a likelihood of success on the merits.
Third, the plaintiff’s
choice to pursue declaratory relief and compensatory damages as a remedy
for the defendants’ alleged deprivations undermines the plaintiff’s claim
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that no adequate remedy exists at law. Accordingly, the Court will deny
the plaintiff’s request for a preliminary injunction.
III. MOTION TO APPOINT COUNSEL
The plaintiff has also filed a motion asking the Court to appoint a
lawyer to represent him. 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, 654 (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 (quoting 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, the plaintiff has not provided evidence that he has
made any efforts to obtain legal counsel on his own. Accordingly, the Court
will deny the plaintiff’s motion to appoint counsel. Moreover, even if the
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plaintiff had provided such evidence, the Court would nevertheless deny
his motion at this time. The plaintiff’s amended complaint is articulate
and well-organized. Indeed, the plaintiff attached several exhibits to his
amended complaint that document his inmate complaints, grievances, and
appeals. Thus, the Court finds that the plaintiff is capable, at least at this
stage in the proceedings, of litigating this case without the assistance of
counsel.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED that the plaintiff’s motion for leave to proceed in
forma pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s request for a
preliminary injunction is DENIED.
IT
IS
FURTHER
ORDERED
that
defendant
Galaske
is
DISMISSED.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint
counsel (ECF No. 5) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of the plaintiff’s amended complaint and this order are being
electronically sent today to the Wisconsin Department of Justice for service
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on the following defendants: Brandee Morris, Donna Harris, and Eric
Gross.
IT IS FURTHER ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice and this
Court, the state defendants shall file a responsive pleading to the amended
complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the complaint and this order upon defendants Ryan
Waldinschmidt and Mary Steburg pursuant to Federal Rule of Civil
Procedure 4.
The plaintiff is advised that Congress requires the U.S.
Marshals Service to 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 FURTHER ORDERED that defendants Waldinschmidt and
Steburg shall file a responsive pleading to the plaintiff’s amended
complaint.
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IT IS FURTHER ORDERED that the Sheriff of Fond du Lac
County shall collect from the plaintiff’s prison trust account the $350.00
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 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 a copy of this order be sent to
the Sheriff of Fond du Lac County.
IT IS FURTHER ORDERED that the plaintiff shall 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. As each
filing will be electronically scanned and entered on the docket upon receipt
by the clerk, the plaintiff need not mail copies to the defendants.
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All
defendants will be served electronically through the court’s electronic case
filing system.
The plaintiff should also retain a personal copy of each
document filed with the court.
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 21st day of September, 2015.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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