Naranjo Apolinar v Schmidt

Filing 16

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 11/17/2015. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. 9 Plaintiff's MOTION to appoint counsel DENIED as moot. Plaintiff to submit $317.52 balance of filing fee to Clerk of Court. Action DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; Clerk of Court to document that inmate brought action that was dismissed for failure to state a claim und er 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1); Clerk of Court to document that inmate has incurred a "strike" under 28 U.S.C. §1915(g). Court certifies any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless plaintiff offers bonafide arguments supporting appeal. (cc: all counsel, via mail to Brian Naranjo Apolinar; Corey Finkelmeyer, Asst. AG)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRIAN NARANJO APOLINAR,
Plaintiff,
-vs-

Case No. 15-CV-947

DALE SCHMIDT,
Defendant.

SCREENING ORDER
The pro se plaintiff was previously confined at the Dodge County
Detention Facility.1

He filed the complaint under 42 U.S.C. § 1983,

alleging that his civil rights were violated. This matter comes before the
court on the plaintiff’s petition to proceed in forma pauperis. He has been
assessed and paid an initial partial filing fee of $32.48.
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

On October 29, 2015, the plaintiff notified the Court that he had been deported
to Mexico. (ECF No. 15.)
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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
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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
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.
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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)).
The plaintiff was confined at the Dodge County Detention Facility
from March 13, 2015, until September 2015, and he is suing Dodge County
Sheriff Dale Schmidt based on the alleged conditions there. The plaintiff
alleges that several detainees were attacked by federal detainees awaiting
transfer while he was there. He also alleges that on occasion Schmidt
provided cool food for lunch that was supposed to be hot. The plaintiff
further alleges that Schmidt failed to provide outdoor recreation activities
for detainees. Lastly, he states that Schmidt failed to provide Spanish
reading materials in the library.
The plaintiff claims that these conditions violated his constitutional
rights. For relief, he seeks $30,000 compensatory damages, and $60,000
punitive damages, as well as injunctive relief.
As an initial matter, the plaintiff may not proceed on a claim based
on allegations that other detainees were attacked. See Swanson v. City of
Chetek, 719 F.3d 780, 783 (7th Cir. 2013). Next, the plaintiff’s allegation
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that he was occasionally served “cool food” fails to state a claim—the
plaintiff does not allege that he missed any meals or that his food was
nutritionally inadequate. See Smith v. Dart, 803 F.3d 304, 312 (7th Cir.
2015); Lunsford v. Bennett, 17 F.3d 1574, 1580-81 (7th Cir. 1994).
Additionally, with respect to plaintiff’s allegations that detainees are
denied outdoor recreation, he does not allege that his movements indoors
were restricted to the point that he was unable to exercise in his cell or in
common areas. Thus, he fails to state a claim. See Smith, 803 F.3d at
313. Lastly, the court is unaware of any constitutional right to Spanish
reading materials in the jail.
This plaintiff has provided no arguable basis for relief, having failed
to make any rational argument in law or fact to support his claims. See
House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992) (quoting Williams v.
Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.
Williams, 490 U.S. 319 (1989)).
ORDER
IT IS THEREFORE 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 motion to appoint
counsel (ECF No. 9) is DENIED AS MOOT.
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IT IS FURTHER ORDERED that this action be and hereby is
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document
that this inmate has brought an action that was dismissed for failure to
state a claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a “strike” under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the plaintiff submit the balance
of the filing fee ($317.52) to the Clerk of Court.
IT IS FURTHER ORDERED that the Clerk of Court enter
judgment accordingly.
IT IS ALSO ORDERED that a copy of this order be sent to Corey
F. Finkelmeyer, Assistant Attorney General, Wisconsin Department of
Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
THE COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)
unless the plaintiff offers bonafide arguments supporting his appeal.
This order and the judgment to follow are final. A dissatisfied party
may appeal this court’s decision to the Court of Appeals for the Seventh
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Circuit by filing in this court a notice of appeal within 30 days of the entry
of judgment. See Federal Rule of Appellate Procedure 3, 4. This court may
extend this deadline if a party timely requests an extension and shows
good cause or excusable neglect for not being able to meet the 30-day
deadline. See Federal Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for
relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within 28
days of the entry of judgment. The court cannot extend this deadline. See
Federal Rule of Civil Procedure 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time, generally no
more than one year after the entry of the judgment. The court cannot
extend this deadline. See Federal Rule of Civil Procedure 6(b)(2).
Dated at Milwaukee, Wisconsin, this 17th day of November, 2015.
BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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