Price v. Wisconsin Department of Corrections
Filing
25
DECISION and ORDER signed by Judge Pamela Pepper on 2/9/2017 GRANTING 20 Plaintiff's motion to amend complaint; GRANTING 21 Plaintiff's motion for order to return exhibits; GRANTING 24 Defendants' motion to screen amended complaint; and DIRECTING the plaintiff to file an amended complaint using the court's form complaint on or before March 8, 2017. (cc: all counsel; by US Mail to plaintiff)(pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ROLAND PRICE,
Plaintiff,
v.
Case No. 15-cv-774-pp
LEBBEUS BROWN, AND
PHILLIP FRIEDRICH
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION TO AMEND
COMPLAINT (DKT. NO. 20), GRANTING PLAINTIFF’S MOTION FOR ORDER
TO RETURN EXHIBITS (DKT. NO. 21), GRANTING DEFENDANTS’ MOTION
TO SCREEN AMENDED COMPLAINT (DKT. NO. 24), AND DIRECTING
PLAINTIFF TO FILE AN AMENDED COMPLAINT USING THE COURT’S
FORM COMPLAINT ON OR BEFORE MARCH 8, 2017
______________________________________________________________________________
The plaintiff, state prisoner Roland Price, is representing himself. On
May 9, 2016, Magistrate Judge William E. Duffin granted the plaintiff’s motion
for leave to proceed without prepayment of the filing fee, and screened the
plaintiff’s second amended complaint. Dkt. No. 16. Judge Duffin allowed the
plaintiff to proceed on retaliation claims against defendants Lebbeus Brown
and Phillip Friedrich. Id. at 8.
Motion to Amend Complaint—Dkt. No. 20
Judge Duffin did not allow the plaintiff to proceed on his claim that the
defendants had confiscated and destroyed his property, because the plaintiff
did not demonstrate that the confiscation and destruction were the result of an
established institution procedure, and because he had not demonstrated that
1
Wisconsin’s state tort remedies were insufficient to address the
confiscation/destruction. Id. at 5-6. The plaintiff’s motion to amend does not
address either of Judge Duffin’s concerns. The plaintiff argues that the
defendants violated D.O.C. policy by taking his belongings. Dkt. No. 20 at 6-9.
Even if the defendants violated D.O.C. policy, that does not mean that they
violated the Constitution; in a federal §1983 case, a plaintiff must allege that a
defendant violated his constitutional rights. The plaintiff also does not explain
why he cannot use Wisconsin’s laws prohibiting wrongful taking of property
and damage to property to address these issues. See, e.g., Wis. Stat. §§893.51
(action for wrongful taking of personal property); 893.52 (action for damages to
injury to property); 943.20(1)(a) (theft). At this point, he still has not stated
sufficient facts to allow him to proceed in federal court under §1983 on his
confiscation/destruction claim.
Judge Duffin also ruled that the plaintiff could not proceed on his claim
that the confiscation of his property denied him access to the courts. Dkt. No.
16 at 5-6. Judge Duffin ruled that in order to support an access-to-courts
claim, the plaintiff needed to show that the confiscation/destruction of his
property caused him to lose his case, or lose on some particular issue. Judge
Duffin explained that a plaintiff had to spell out, in his complaint, why he
believed the loss of his property caused him to lose a motion, or his case. Id. at
6. In the motion to amend, the plaintiff again explains how he lost the
materials, and explains what materials he lost. Dkt. No. 20 at 8-9. He then
cites case law about access-to-courts claims, and argues that the defendants
2
conspired to cause him to miss a court deadline and to render him unable to
research and draft litigation by not giving him enough library time. Id. at 9. He
appears to argue that, because he didn’t have his papers, he missed a critical
filing deadline, id. at 10-11; got in trouble with assistant district attorneys and
assistant attorneys general, id. at 12; caused his complaint to stall, id.; and
caused various Wisconsin courts to misconstrue the pleadings he did file, id. at
9-13. He also throws in that the defendants also denied him access to the
courts by not giving him enough time in the law library, and for not letting him
have prison jobs so that he could earn the money to pay for copies.
The plaintiff may be able to state an access-to-courts claim. It would be
helpful to the court in figuring that out if the plaintiff could leave out all of the
cases he cites, and all of the legal language, and just tell the court: “I wanted to
file a writ of certiorari with the Wisconsin Supreme Court, and I was supposed
to file it by a certain deadline. Because defendants A, B, C and D took copies of
the cases that I needed to write that document, I wasn’t able to file it in time,
missed the deadline, and the court denied the writ.” If that is what the plaintiff
is arguing, he can just say that—no fancy legal language, no “upon information
and belief,” no cites to cases or statutes. That would help the court understand
the basis for his claims.
The plaintiff also argues in his motion that Judge Duffin should have
been able to figure out, by looking at the ninety pages of attachments he sent
to the court, how the loss of his property impacted his civil rights. But the law
requires the court to screen the complaint. At the very early screening stage of a
3
case, courts do not review evidence—that comes later. At the screening stage,
Judge Duffin was required to look at the information in the complaint to decide
whether the plaintiff had alleged sufficient facts to support his claims. If the
allegations in the complaint itself are not sufficient to allow the plaintiff to
proceed on a claim, then the court should not allow the plaintiff to proceed on
that claim. Judge Duffin looked at what he was supposed to look at.
The court is going to give the plaintiff another opportunity to file a
concise, straightforward amended complaint. The court is sending, along with
this order, the court’s form complaint, as well as a guide for pro se inmate
plaintiffs on how to file a complaint that the court can review. The plaintiff
must use the form. He must label the document “third amended complaint.” He
should not include case citations or statutory citations. He must state, in clear,
straightforward language, what each defendant did to him, and how that
defendant’s actions violated his constitutional rights.
The court also notes that on November 7, 2016, the plaintiff submitted
an unsigned affidavit in support of amending the complaint. Dkt. No. 23. It
appears the plaintiff wanted the Warden of New Lisbon Correctional Institution
to sign this affidavit, but the warden refused. The other page of the affidavit
details several occasions on which Correctional Officer Olsen interfered with
the plaintiff’s ability to mail documents to courts since he filed this complaint.
The plaintiff may include these claims in his third amended complaint, if he
chooses to, and if the claims are properly related to the other claims in the
complaint. See George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
4
Defendants’ Motion to Screen Second Amended Complaint—Dkt. No. 21
The defendants filed a motion asking the court to screen the second
amended complaint. Dkt. No. 24. The court has, as part of its decision allowing
the plaintiff to file an amended complaint, screened his second amended
complaint. Thus, the court will grant that motion. Dkt. No. 24.
The court notes, however, that the defendants’ motion is unnecessary
and inefficient. When the court receives the third amended complaint, it will
screen it under 28 U.S.C. § 1915(e)(2). It is required to do so by statute. The
court cannot guarantee that it will screen the third amended complaint the
minute the plaintiff files it—the court’s case load is very heavy, particularly
given the fact that one of the four judges on the court passed away in
September and the processing for nominating his successor has not begun—
and it sometimes cannot screen complaints as quickly as it would like due to
trials, hearings, and motions in other cases. But the court will screen the third
amended complaint. The court asks the defendants not to file motions to
screen complaints in the future.
Motion in Support of the Return of Exhibit—Dkt. No. 21
Finally, the plaintiff asks the court to return the ninety pages of exhibits
he submitted with his original complaint. Dkt. No. 21. He represents that the
documents he sent the court are his only copies of those documents. The court
scanned the documents, and they are available on the docket. The court will
grant this motion, and instruct the clerk’s office to return the paper originals to
the plaintiff.
5
The court GRANTS the plaintiff’s motion to amend complaint. Dkt. No.
20. The court ORDERS that the plaintiff shall file a third amended complaint
in time for the court to receive it on or before March 8, 2017.
The court GRANTS the plaintiff’s motion for order to return exhibits.
Dkt. No. 21. The court directs the Clerk of Court to mail to the plaintiff the
ninety pages of exhibits filed with the plaintiff’s complaint. (Dkt. No. 1-1.)
The court GRANTS the defendants’ motion to screen the second
amended complaint. Dkt. No. 24.
Dated in Milwaukee, Wisconsin this 9th day of February, 2017.
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?