London v. Clarke et al

Filing 12

DECISION AND ORDER signed by Judge Pamela Pepper on 12/8/2015 GRANTING 2 MOTION for Leave to Proceed in forma pauperis and SCREENING Plaintiff's Complaint. The court ORDERS that amended pleadings are due by 1/18/2016. (cc: all counsel; by US Mail to Plaintiff and Warden at Dodge CI)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEITH LONDON,
Plaintiff,
v.

Case No. 15-cv-428-pp

DAVID A. CLARKE, JR., JURIST JEAN DIMOTTO, J.B. VAN HOLLEN,
JIM SCHWOCHERT, ROBERT BLANCO, ANDREA BENTHAL,
MARC W. CLEMENTS, DYLON RADTKE, EDWARD WALLS,
CATHY A. JESS, JOHN O’KEEFE, ANN SCARPITA, LYNN ADELMAN,
WILLIAM GRIESBACH, L.V. TERAN, J.P. STADTMUELLER,
AARON GOODSTEIN, GREG SCHULER, RICHARD POULSEN,
JOHNATHAN D. WATTS, FRED KLIMETZ, SAM SCHNEIDER,
SARA SCHNEIDER, ANTHONY A. OWENS, JR., EUGENE DETERT,
SARA WILSON, and BROOKS FELDMAN,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2) AND SCREENING THE
PLAINTIFF’S COMPLAINT
______________________________________________________________________________
The plaintiff, a state prisoner representing himself, filed a three-page
document captioned as a “Complaint Arising Under Civil Rights Act, 42 U.S.C.
§1983.” The plaintiff names twenty-six defendants, whom he says claims his
civil rights. The case comes before the court on the plaintiff’s motion for leave
to proceed in forma pauperis, as well as for screening of the plaintiff’s
complaint.

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I.

IN FORMA PAUPERIS STATUS

The plaintiff filed his motion asking to proceed without pre-paying the
filing fee on April 10, 2015. Dkt. No. 2. On May 27, 2015, the court issued an
order, waiving the initial partial filing fee required by 28 U.S.C. §1915(b)(2).
Dkt. No. 8. In that order, the court informed the plaintiff that if he wanted to
voluntarily dismiss his complaint in order to avoid a PLRA “strike,” he must do
so by June 19, 2015. Id. at 3. June 19, 2015 came and went, and the plaintiff
did not dismiss his case. Accordingly, the court now will determine whether to
allow the plaintiff to proceed in forma pauperis.
The Prison Litigation Reform Act applies to this action because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That
law allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without pre-paying the civil case-filing fee, as long as he meets
certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
initial partial filing fee, the court may allow the plaintiff to pay the balance of
the $350 filing fee over time, through deductions from his prisoner account. Id.
However, a prisoner will not be prohibited from bringing a civil action for
the reason that he lacks the assets and means to pay an initial partial filing
fee. 28 U.S.C. §1915(b)(4). As discussed above, on May 27, 2015, the court
determined that the plaintiff lacked the funds to pay an initial partial filing fee.
Dkt. No. 8. Accordingly, the court will grant the plaintiff’s motion for leave to
proceed in forma pauperis, and will allow the plaintiff to pay the balance of the
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$350.00 filing fee over time from his prisoner account, as described at the end
of this order.
II.

SCREENING OF PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The law requires the court 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 part or all of
a complaint if the plaintiff raises 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 claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need to plead
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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 “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 follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “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 the defendants: 1) deprived of a right secured by the Constitution or laws
of the United States; and 2) acted under color of state law. Buchanan-Moore v.
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Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
B.

Facts Alleged in the Proposed Complaint

In the document that purports to be the plaintiff’s civil rights complaint,
he states that “through ‘Various Acts of Harassment,’” someone—it’s not clear
who—has created a climate that makes it impossible for him to pay his filing
fee. Dkt. No. 1 at 3. As far as the court can tell, this document is a brief in
support of the plaintiff’s request to proceed in forma pauperis. It is not his
complaint—the document in which he tells the court which of his
constitutional rights he believes the twenty-six defendants have violated, and
what makes him think they did so.
It may be relevant that on April 10, 2015, the day the plaintiff filed this
complaint, he filed a total of five new cases. Perhaps the plaintiff meant to file
this document, not as a separate complaint, but as a request for permission to
proceed in forma pauperis in one of the other cases. None of the other cases,
however, name the same set of defendants. And the plaintiff signed this
document on a different day than he signed his complaints in the other cases.
The court next considers whether the plaintiff may have accidentally
forgotten to submit the complaint itself. He mentions an affidavit attached to
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the “motion,” Dkt. No. 1 at 1, but nothing was attached to the document the
plaintiff filed.
Regardless of the reason, the bottom line is that at this point, the
plaintiff has not filed any document telling the court which of his constitutional
rights he believes each of the twenty-six defendants violated, or what makes
him believe his rights were violated. The court will give the plaintiff an
opportunity to amend the complaint, but the court advises the plaintiff to
consider carefully the defendants he names. For example, he has named one
state court judge, one United States Magistrate Judge, and three United States
District Judges. “A judge has absolute immunity for any judicial actions unless
the judge acted in the absence of all jurisdiction.” Polzin v. Gage, 636 F.3d 834,
838 (7th Cir. 2011).
If the plaintiff wants to proceed, he must file an amended complaint on
or before Monday, January 18, 2016. If the court receives an amended
complaint by that date, the court will screen that complaint pursuant to 28
U.S.C. § 1915A. If the plaintiff fails to file an amended complaint by that that
date, the court will dismiss the case on the next business day, without further
notice or hearing.
The court advises the plaintiff that the amended complaint must bear the
docket number assigned to this case (15-cv-428) and must be labeled
“Amended Complaint.” The amended complaint supersedes the prior complaint
and must be complete in itself without reference to the original complaint. See
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
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1056-57 (7th Cir. 1998). In Duda, the appellate court emphasized that in such
instances, the “prior pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at 1057 (citation omitted).
The court will provide the plaintiff with a copy of the court’s §1983
complaint form and instructions. Civil Local Rule 9(b) requires pro se prisoners
to use the court’s form. If the plaintiff is unable to use the form due to his
disability, he must at least follow the format of the complaint form.
III.

CONCLUSION
The court GRANTS the plaintiff’s application to proceed in forma

pauperis. (Dkt. No. 2.) The court ORDERS the Secretary of the Wisconsin
Department of Corrections or his designee to 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 Secretary
or his designee must clearly identify the payments by the case name and
number. The court will send a copy of this order to the warden of the
institution where the inmate is confined.
The court further ORDERS that the plaintiff shall file an amended
pleading on or before Monday, January 18, 2016.
The court ORDERS that, pursuant to the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
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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 the 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
The court will send a copy of this order to the warden of the institution
where the inmate is confined.
Dated in Milwaukee, Wisconsin this 8th day of December, 2015.

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