Richards v. Gutho et al
Filing
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DECISION AND ORDER signed by Judge Pamela Pepper on 12/19/2016 SCREENING 1 Plaintiff's Complaint. (cc: all counsel; by US Mail to plaintiff)(pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RONALD E. RICHARDS,
Plaintiff,
v.
Case No. 16-cv-1453-pp
SGT. MICHAEL GUTHO,
KELLY SALINAS,
CAPTAIN ANDREW NIELSON,
WARDEN ROBERT HUMPHREYS, and,
KATHY SCHMIDT,
Defendants.
______________________________________________________________________________
DECISION AND ORDER
SCREENING THE PLAINTIFF’S COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a civil rights complaint under 42 U.S.C. §1983, alleging that the defendants
violated his rights at the Kettle Moraine Correctional Institution. Dkt. No. 1. On
November 17, 2016, the plaintiff paid the $400.00 civil case filing fee in full.
The case is before the court for screening of the plaintiff’s complaint.
II.
SCREENING OF PLAINTIFF’S AMENDED COMPLAINT
A.
Standard for Screening Complaints
Regardless of fee status, the Prison Litigation Reform Act requires federal
courts 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 may dismiss an action, or part of it, if the claims alleged
are “frivolous or malicious,” fail to state a claim upon which relief may be
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granted, or seek monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §1915(e)(2)(B).
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). The complaint need not plead specific
facts, and need only provide “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)). “Labels and
conclusions” or a “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Indeed, allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions not supported by facts “are not entitled to the
assumption of truth.” Id. Second, the court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives pro se allegations, “however inartfully pleaded,” a liberal
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construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
B.
Facts Alleged in the Complaint
On March 22, 2016, Sergeant Michael Gutho worked second shift on
Unit 12. Dkt. No. 1 at 3-4. At approximately 2:45 p.m., Gutho sorted mail while
the plaintiff was away from his cell. Id. at 4. The plaintiff states that “when Sgt.
Gutho ran accross [sic] a letter addressed to the plaintiff, he not only cut the
tape that secures the contents in the envelope, but he read the letter.” Id. The
plaintiff further explains that mailroom staff typically place a piece of tape
across the envelope after they have already “opened [and] inspected” the mail.
Id. at 3.
After reading the letter, Gutho took the letter outside to the courtyard
and told several inmates “exactly what he read in the plaintiff’s letter.” Id. at 4.
Gutho then went to the plaintiff’s room and performed a room search. Id.
Gutho left the letter he had read with several other letters that were already in
the plaintiff’s cell from before the search. Id. The plaintiff believes that Gutho
was “trying to conceal the letter at that point, possibly covering up what he had
done.” Id. at 4-5.
Three days later, the plaintiff approached Sergeant Schue and explained
what had happened. Id. at 5. As a result of the conversation with Schue, the
plaintiff wrote to Captain Andrew Nielson and Warden Robert Humphreys, and
he filed an inmate grievance. Id. Kathy Schmidt responded to the inmate
grievance, stating that “the matter was resolved during the investigation.” Id.
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The plaintiff states that “there wasn’t one person that spoke to the plaintiff”
regarding the incident. Id. For relief, the plaintiff seeks monetary damages and
injunctive relief “to stop opening outgoing mail to check for art work such as
pictures, cards, etc.” Id. at 6.
C.
Legal Analysis of Alleged Facts
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)). The plaintiff states that he
believes his “rights were deeply violated” (Dkt. No. 1 at 6), but he does not
clearly identify which constitutional rights he believes are involved.
Under the First Amendment, prisoners have a right to be free from
interference with their Alegal@ mail. See Wolff v. McDonnell, 418 U.S. 539, 577
(1974). Prison officials may inspect, but may not read, certain types of legal
mail. Id. For example, correspondence between an inmate and an attorney is
confidential. Id. Thus, prison officials may not read the contents of legal mail,
and they must open such correspondence in the presence of the inmate. Id.
Inspection of personal mail, on the other hand, is a legitimate prison
practice that is justified by the important governmental interest in prison
security. Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986). Prison officials
can read non-privileged mail, on a “spot check” basis, in order to detect
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possible escape plans or other threats to jail security. Id. (citing Smith v.
Shimp, 562 F.2d 423 (7th Cir. 1977). Interference with an inmate's personal
mail, beyond that of inspection for contraband, must be reasonably related to
legitimate prison interests in security and order. See Thornburgh v. Abbott,
490 U.S. 401, 413-14 (1989)(citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
The plaintiff claims that Gutho read a letter that was addressed to the
plaintiff, and that he went to the courtyard and told other inmates what the
letter said. The plaintiff acknowledges that prison staff can “open and inspect”
non-legal mail out of the presence of inmates, and he does not allege that this
letter was legal mail; the court assumes that it was personal mail.
The plaintiff believes, however, that mailroom staff already had
inspected his personal mail for contraband, because there was a piece of tape
across the envelope that had been cut off. If this is true, Gutho would not have
had any reason to read this letter, or for that matter, share its contents with
other inmates. The plaintiff received his letter within three days (he filed a
grievance on the incident on March 25, 2016), and therefore, Gutho did not
deny the plaintiff access to his mail. Despite the slim facts, however, at this
stage of the litigation, the court will allow the plaintiff to proceed with a First
Amendment interference-with-mail claim against Gutho.
To the extent that plaintiff seeks to assert a “right to privacy” claim
under the Fourteenth Amendment, he may not do so, because he does not have
an expectation of privacy in this context. See Shields v. Burge, 874 F.2d 1201,
1211 (7th Cir. 1989) (“the constitutional right to privacy applies only to
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‘fundamental’ rights that are ‘implicit in the concept of ordered liberty’”)
(quoting Roe v. Wade, 410 U.S. 113, 152 (1973).
Nor will the court allow the plaintiff to proceed with claims against
Salinas, Nielson, Humphreys or Schmidt. The plaintiff alleges no facts at all
against Salinas. Neither Nielson, Humphreys or Schmidt were personally
involved in the incident, and they had no duty to intervene once the plaintiff
filed a grievance, because he filed the grievance after the alleged injury had
occurred. The court will dismiss these three defendants from the case.
III.
CONCLUSION
The court ORDERS that Kelly Salinas, Captain Andrew Nielson, Warden
Robert Humphreys, and Kathy Schmidt are dismissed from the case.
The court ORDERS that the plaintiff may proceed on a First Amendment
interference-with-mail claim against Gutho.
The court ORDERS that, pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, the court will
send copies of the plaintiff’s complaint and this order electronically to the
Wisconsin Department of Justice for service on Sgt. Michael Gutho.
The court ORDERS that, pursuant to the informal service agreement
between the Wisconsin department of Justice and this court, Sgt. Michael
Gutho shall file a responsive pleading to the complaint within sixty days of
receiving electronic notice of this order.
The court ORDERS the plaintiff to submit all correspondence and legal
material to:
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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. Because the clerk
of court will scan and enter each filing onto the docket electronically upon
receipt, the plaintiff need not mail copies to the defendants. All defendants will
be served electronically through the court’s electronic case filing system. The
plaintiff should also retain a personal copy of each document filed with the
court.
The court advises the plaintiff that failure to make a timely submission
may result in the dismissal of the 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 in Milwaukee, Wisconsin this 19th day of December, 2016.
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