Galindo Zaruba Colby v. Taycheedah Correctional Institution

Filing 7

ORDER signed by Judge Lynn Adelman on 4/30/16 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering that on or before Tuesday, May 31, 2016, plaintiff shall file an amended pleading curing the defects in t he original complaint. Failure to timely file an amended complaint will result in dismissal of this action for failure to prosecute. Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from plaintiffs prisoner trust account the $348.34 balance of the filing fee as set forth herein. (cc: all counsel, via USPS to plaintiff, Warden) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CASSIE SUE GALINDO ZARUBA COLBY,
Plaintiff,
v.

Case No. 16-CV-366

TAYCHEEDAH CORRECTIONAL INSTITUTION,
Defendant.

ORDER

Plaintiff, Cassie Sue Galindo Zaruba Colby, a state prisoner, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that her civil rights were violated. This
matter comes before me on plaintiff's motion for leave to proceed in forma pauperis and
for screening of plaintiff’s complaint.
Plaintiff has been assessed and paid an initial partial filing fee of $1.66. I will
grant her motion for leave to proceed in forma pauperis. 28 U.S.C. § 1915(b)(4).
I am 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). I 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); 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, 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 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 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
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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 wellpleaded 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)
she 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). I am obliged to give
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)).
Plaintiff names only Taycheedah Correctional Institution as a defendant. She
then states that the Department of Corrections failed to keep her safe because
Correctional Officers Suar and Franks verbally abused her while she was in false labor
at St. Agnes Hospital in Fond du Lac, Wisconsin. Plaintiff does not know why they
harassed her but says that she has been harassed by the Department of Corrections
ever since. Plaintiff asks for monetary damages.
Plaintiff has not named a proper defendant. Taycheedah Correctional Institution
is operated by the Wisconsin Department of Corrections, a state agency. States and
state agencies are not “persons” within the meaning of § 1983 and therefore are not

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suable under § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58 (1989);
Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012).
If plaintiff wants to proceed, she must file an amended complaint naming the
individual defendants who were involved in the alleged constitutional violation. The
amended complaint must be filed on or before Tuesday, May 31, 2016. If plaintiff files
an amended complaint, I will screen it pursuant to 28 U.S.C. § 1915A. If plaintiff does
not file a timely amended complaint, I will dismiss this action without prejudice for failure
to prosecute.
Plaintiff is advised that the amended complaint must bear the docket number
assigned to this case and must be labeled “Amended Complaint.”

The amended

complaint replaces 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, 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).
NOW, THEREFORE, IT IS HEREBY ORDERED that plaintiff’s motion for leave
to proceed in forma pauperis (Docket #2) is GRANTED.
IT IS FURTHER ORDERED that on or before Tuesday, May 31, 2016, plaintiff
shall file an amended pleading curing the defects in the original complaint. Failure to
time file an amended complaint will result in dismissal of this action for failure to
prosecute. Plaintiff must use the court’s form complaint; the court will provide plaintiff
with a copy of the form.

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IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from plaintiff’s prisoner trust account the
$348.34 balance of the filing fee by collecting monthly payments from 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 ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.
IT IS FURTHER ORDERED that 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.
Plaintiff is further advised that failure to make a timely submission may result in
the dismissal of this action for failure to prosecute.
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.
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Dated at Milwaukee, Wisconsin, this 30th day of April, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge

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