Price v. Wisconsin Department of Corrections
ORDER signed by Judge Pamela Pepper on 8/7/2017. Defendants Lebbeus Brown and CO Olsen DISMISSED. Defendant Friedrich to file responsive pleading to complaint within 60 days. Parties shall not begin discovery until after the court enters a scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Roland Price at New Lisbon Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 15-cv-774-pp
PHILLIP FRIEDRICH, AND
DECISION AND ORDER SCREENING PLAINTIFF’S THIRD AMENDED
COMPLAINT (DKT. NO. 28)
The plaintiff filed his third amended complaint on April 7, 2017. Dkt. No.
28. The court must 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 part of it, 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). 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)).
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).
Allegations in the Complaint
The third amended complaint is thirteen pages long, and contains
allegations that span almost six years and three different prisons. Dkt. No. 28.
The plaintiff begins by discussing a conduct report that he received,
which resulted in a hearing in January 2011 at the Wisconsin Secure Program
Facility (WSPF). Id. at 2. He alleges that defendant Brown wrote and
investigated this report. Id. at 3. He maintains that all conduct reports must be
designated by the security director as either a major or a minor offense, and
says that if the conduct report doesn’t contain such a designation, the WSPF
lacks the “jurisdictional authorities” to process the report. Id. The plaintiff
alleges that a Captain Gardner (not a defendant) did not “check the type of
hearing procedure.” Id. The plaintiff also asserts that following the hearing, he
was placed in administrative segregation, while similarly situated non-black
inmates were placed on temporary lockup status pending a decision on their
conduct reports. Id. The plaintiff suggests that he received this treatment
because he had filed multiple complaints against defendant Brown, and asserts
that more than half of the staff at WSPF are under Brown’s influence. Id. at 3.
The plaintiff’s “claim #2,” “claim #3,” and “claim #4” relate to property
deemed contraband and destroyed by defendant Phillip Friedrich. Id. at 3-11.
In claim #2, the plaintiff asserts that Friedrich seized his legal papers as
contraband after Brown wrote the conduct report. Id. at 3-4. He claims that
Friedrich seized the documents to prevent the plaintiff from filing inmate
complaints and taking legal action. Id. at 5.
In claim #3, the plaintiff alleges that in May 2012, he was transferred out
of WSPF to Columbia Correctional Institution, and that Friedrich “packed out”
his property. Id. at 6. The plaintiff alleges that when he got to CCI, property
was missing, and although he followed the procedures CCI staff told him to
follow, his property was “gone.” Id. at 7.
In claim #4, the plaintiff turns his attention back to his time at WSDF,
and alleges that the facility’s failure to follow Wisconsin law, and Friedrich’s
destruction of his legal papers, damaged his ability to present appeals, as well
as his marriage and family support system. Id. at 8-10. He says that he was
denied access to the courts because of this. Id. at 10.
The plaintiff’s final claim alleges that defendant Olsen denied the plaintiff
legal loans and withheld legal mail at New Lisbon Correctional Institution. Dkt.
No. 28 at 11-13. According to the plaintiff, Olsen delayed the plaintiff’s
outgoing mail a number of times in 2016 and 2017. Id.
Failure to Mark Conduct Report as Minor or Major; Placement in
The plaintiff’s first claim asserts that Captain Gardner didn’t designate
the conduct report that Brown wrote as either “minor” or “major,” and thus
that the WSDF didn’t have the authority to process that conduct report. This
claim does not assert a constitutional violation, and the plaintiff did not name
Gardner as a defendant. The court will not allow the plaintiff to proceed on this
The plaintiff also asserts that he “was placed” in segregation, while nonblack inmates were placed in temporary lock-up status. He implies a
discrimination claim, but the plaintiff does not say who placed him in
segregation. The court will not allow the plaintiff to proceed on this claim.
First Amendment Retaliation Claims
The plaintiff appears to argue in claims #2, #3 and #4 that Friedrich
seized his legal materials and other items in retaliation for the plaintiff’s
objecting to the way the institution handled the conduct report that Brown had
investigated and written. To establish a claim of retaliation under the First
Amendment, the plaintiff must show that he engaged in an activity protected
by the First Amendment, that he suffered a deprivation likely to prevent future
protected activities, and that there was a causal connection between the two.
See Watkins v. Kasper, 599 F.3d 791, 794 (7th Cir. 2010); Bridges v. Gilbert,
557 F.3d 541, 546 (7th Cir. 2009). The plaintiff has alleged that (a) he engaged
in activity protected by the First Amendment (objecting to how the Brown
conduct report was handled), (b) that Friedrich caused him a deprivation likely
to deter First Amendment activity in the future (by taking his materials so he
could not file complaints or participate in the legal process), and (c) that
Friedrich did this to stop him from filing complaints or legal actions. Liberally
construing these allegations, the court finds that he has alleged sufficient facts
to allow him to proceed on a retaliation claim against Friedrich.
Denial of Access to Courts Claim
The plaintiff also alleges that Friedrich’s seizure of materials denied him
access to the court system. Prisoners have a fundamental right of access to the
courts, and prisons must facilitate that right. In re Maxy, 674 F.3d 658, 660
(7th Cir. 2012) (citations omitted). To support a denial-of-access claim, a
plaintiff must allege “that some action by the [defendant] has frustrated or is
impeding an attempt to bring a nonfrivolous legal claim.” Id., citing Christopher
v. Harbury, 536 U.S. 403, 416 (2002). The plaintiff has alleged sufficient facts
to allow him to proceed on a claim that Friedrich’s seizure of his belongings
impeded his ability to litigate his appellate cases.
Denial of Legal Loans/Withholding of Mail
As the court mentioned in a prior order, claims must be properly related
to other claims in the complaint. See George v. Smith, 507 F.3d 605, 607 (7th
Cir. 2007); Dkt. No. 25 at 4. The plaintiff’s claims against Olsen regarding
Olson’s refusal to mail legal documents and denial of legal loans do not arise
“out of the same transaction, occurrence, or series of transactions or
occurrences” as the plaintiff’s claims against Friedrich. See Fed. R. Civ. P.
20(a)(2). “[M]ultiple claims against a single party are fine, but Claim A against
Defendant 1 should not be joined with unrelated Claim B against Defendant 2.”
George, 507 F.3d at 607.
Even if the plaintiff’s claims against Olsen were related to his claims
against Friedrich, he fails to state an access to the courts claim. To state a
valid access to the courts claim, a prisoner must minimally allege both that
prison officials failed to help him prepare and file meaningful legal papers, and
that he lost a valid legal claim or defense because of the challenged conduct.
See Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir.2009); Marshall v. Knight, 445
F.3d 965, 969 (7th Cir.2006). Although the plaintiff indicates that he missed
deadlines and that Olsen held his legal mail to the court before sending it, he
does not plead that he lost a valid legal claim or defense due to Olsen’s actions
(or inaction). The court will not allow the plaintiff to proceed on any claim
against Olsen, and will dismiss Olson as a plaintiff.
Finally, the court turns to defendant Lebbeus Brown. In the third
amended complaint, the plaintiff does not even mention Brown until page 3.
Dkt. No. 28 at 3. On page 3, in paragraph 5, the plaintiff explains that he has
filed multiple complaints against Brown for mistreatment, but that Brown and
his “mob” “account for nearly 65% of staff members at WSPF,” and that Brown
has a lot of influence at WSPF. The plaintiff says he knew that his challenges of
Brown were “foolish,” but that he didn’t think they would destroy his life. In the
next paragraph, he alleges that Brown wrote the conduct report that led to the
hearing that landed him in segregation. Dkt. No. 28 at 3. On page 4, he alleges
that Friedrich wanted to punish the plaintiff for the plaintiff’s complaints
against Friedrich’s supervisor, Brown. Id. at 4.
These are the mentions of Lebbeus Brown in the third amended
complaint. The plaintiff has not alleged any constitutional violations against
Brown. He has alleged only that Brown authored the conduct report that was
not handled correctly, that he has filed many complaints against Brown, and
that Brown was very influential at WSDF. These allegations are not sufficient to
allow the plaintiff to proceed on constitutional claims against Brown under
§1983. The court will dismiss Brown as a defendant.
The court DISMISSES Lebbeus Brown and CO Olsen as defendants.
The court ALLOWS the plaintiff to proceed on retaliation and denial of
access to courts claims against Phillip Friedrich.
The court ORDERS that under 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 to the Wisconsin
Department of Justice for service on defendant Friedrich.
The court ORDERS that, under the informal service agreement between
the Wisconsin Department of Justice and this court, defendant Friedrich shall
file a responsive pleading to the complaint within sixty days of receiving
electronic notice of this order.
The court ORDERS that the parties shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
The court ORDERS 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 case. Because the clerk will
electronically scan and enter on the docket each document upon receipt, the
plaintiff need not mail copies to the defendants. The defendant will be served
electronically through the court’s electronic case filing system. The plaintiff
should retain a personal copy of each document filed with the court.
The court advises the plaintiff that failure to timely file pleadings and
other documents may result in the dismissal of this case for failure to
prosecute. 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 7th day of August, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
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