Sample v. Department of Corrections et al

Filing 11

ORDER DISMISSING CASE signed by Judge J.P. Stadtmueller on 1/31/2017. Action DISMISSED with prejudice 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 this inmate has bro ught an action that was dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1), as well as that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). CERTIFIED that any appeal from t his 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 Terrence Sample and Warden at Kettle Moraine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRENCE SAMPLE,
Plaintiff,
v.

Case No. 16-CV-1523-JPS

OFFICER SCHNEIDER and OFFICER
LARSON,

ORDER
Defendants.
On January 3, 2017, the Court screened the plaintiff’s original
complaint. (Docket #8). The Court found that the plaintiff had not stated any
viable claims for relief. Id. at 4. The Court struck the complaint and required
the plaintiff to offer an amended complaint to continue this action. Id. at 4-5.
On January 25, 2017, the plaintiff submitted an amended complaint. (Docket
#10).
As noted in its January 3, 2017 screening order, the Court is required
to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or employee of a governmental entity. See
(Docket #8 at 1); 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 immune from such relief.
28 U.S.C. § 1915A(b). The same standards cited in the original screening order
apply here. (Docket #8 at 1-3).
In his amended complaint, the plaintiff alleges that he ordered seven
magazines in June 2016, three from Wall Periodicals Bookstore and four from
Harlem World Bookstore. (Docket #10 at 4). He believes that those magazines

arrived but were held, in violation of the prison’s mail policy, because Officer
Schneider (“Schneider”) determined that one of the Wall Periodicals
magazines was on the Wisconsin Department of Corrections (“DOC”)
“denied publications list.” Id. This is a running list of books and magazines
that the DOC has determined should not be permitted in its prisons for
various security and disciplinary reasons. See (Docket #8 at 4). The plaintiff
was apparently allowed to receive the remaining two Wall Periodicals
magazines. (Docket #10 at 4).
The plaintiff also inquired about his Harlem World magazines. Id.
They too were being held pending review “by someone from Madison.” Id.
The plaintiff thereafter filed an inmate complaint about his mail being held.
Id. He was called to the mail room by Officer Larson (“Larson”), apparently
in response to the complaint. Id. Larson told the plaintiff that all of the
Harlem World magazines were on the denied publications list. Id. at 4-5. The
plaintiff went to the library to review that list and discovered that one of
them was permitted. Id. He also found that Larson had falsely labeled one
magazine, which was not on the list, as another which was on the list, in order
to keep it from the plaintiff. Id.
Finally, the plaintiff alleges that Larson overcharged him for sending
a magazine back, “[w]hich shows that from the 1st encounter with Officer
Larson he had something personal against me early on.” Id. at 5-6. The
plaintiff requests the following relief: 1) reimbursement of $47.99 for the
denied magazines, which were apparently destroyed by the prison, 2) his
filing fee in this matter, and 3) “$1000.00 compensation.” Id. at 3.
At the outset, the Court notes that it has generously reviewed the
plaintiff’s initial complaint and the exhibits thereto in assessing this
complaint, as he appears to rely on them in the amended complaint. See
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(Docket #1-1). As noted in the Court’s first screening order, a prior complaint
and all its attachments are superceded by an amended complaint and so
should not be considered by the Court in assessing an amended complaint.
See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054,
1056-57 (7th Cir. 1998). Even viewing the old documents, however, does not
save the plaintiff’s amended complaint.
The plaintiff does not identify any legal basis for his lawsuit in the
amended complaint. The Court is thus left to determine what grounds could
possibly obtain him the relief he seeks. The initial complaint references
procedural due process in denying the plaintiff his magazines. (Docket #1 at
4). Assuming that continues to be a basis for relief in the amended complaint,
the plaintiff fails to state such a claim. The relevant law is well-summarized
by Judge Adelman:
The Due Process Clause of the Fourteenth Amendment
“provides that certain substantive rights—life, liberty, and
property—cannot be deprived except pursuant to
constitutionally adequate procedures.” Germano v. Winnebago
County, 403 F.3d 926, 928 (7th Cir. 2005) (quoting Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)). Thus, when
property is taken by government action, due process generally
requires that the government provide an “opportunity to
present reasons, either in person or in writing, why proposed
action should not be taken....” Germano, 403 F.3d at 928
(quoting Cleveland, 470 U.S. at 546).
An individual is entitled to an opportunity for a hearing
before the state permanently deprives him of his property.
Parratt v. Taylor, 451 U.S. 527, 540 (1981), overruled in part on
other grounds by Daniels v. Williams, 474 U.S. 327 (1986).
However, a deprivation of a constitutionally protected
property interest caused by a state employee’s random,
unauthorized conduct does not give rise to a § 1983 procedural
due process claim unless the state fails to provide an adequate
post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 533
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(1984). In determining whether alleged conduct was “random
and unauthorized,” the court considers whether the conduct
was predictable. Hamlin v. Vaudenberg, 95 F.3d 580, 584 (7th
Cir. 1996). Predictability is determined both by the amount of
discretion exercised by an official as well as the extent to which
that discretion is uncircumscribed. Id. In Parratt, after a prison
inmate did not receive hobby materials he had ordered because
normal procedures for the handling of mail at the prison were
not followed, he claimed that the conduct of the prison officials
deprived him of property without due process of law. [Parratt,]
451 U.S. at 530. The Supreme Court explained that although the
state had deprived the inmate of property, “the deprivation did
not occur as a result of some established state procedure.
Indeed, the deprivation occurred as a result of the unauthorized
failure of agents of the State to follow established state
procedure.” Id. at 543.
Wisconsin law provides tort remedies to individuals
whose property has been converted or damaged by another.
See Wis. Stat. §§ 893.35 and 893.51. If a deprivation of property
did not occur as the result of some established procedure and
state law provides an adequate post-deprivation remedy for
redressing the missing property, due process has been satisfied.
Parratt, 451 U .S. at 543–44; see also Hamlin, 95 F.3d at 585
(holding that Wisconsin’s post-deprivation procedures are
adequate, albeit in a different context).
Johnson v. Wallich, No. 13-CV-614-LA, 2013 WL 5651385 at *2-3 (E.D. Wis.
Oct. 15, 2013). This law applies precisely to the plaintiff’s complaint. He
alleges not that Schneider and Larson followed DOC’s mail policy, but that
they did not follow it in order to withhold his magazines. Their conduct, then,
was of the “random and unauthorized” sort identified by Hudson. Further, as
the Court noted in the original screening order, a tort action is available to the
plaintiff in Wisconsin state court to recover for the disposed magazines. See
Rogers v. Morris, 34 Fed. App’x 481, 482-83 (7th Cir. 2002). The plaintiff has
therefore failed to present a viable due process claim.

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The other potentially relevant constitutional basis for the plaintiff’s
complaint is the First Amendment. For this claim, Judge Reagan provides an
excellent primer:
The Supreme Court has recognized that prisoners have
protected First Amendment interests in both sending and
receiving mail. See generally Thornburgh v. Abbott, 490 U.S. 401
(1989) (discussing the scope of a prisoner’s First Amendment
rights and collecting cases on the framework to be used to
assess mail screening mechanisms); Turner v. Safely, 482 U.S. 78
(1987); Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[a] prison
inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system”). The Seventh
Circuit has held that “[t]he free-speech clause of the First
Amendment applies to communications between an inmate
and an outsider.” Zimmerman v. Tribble, 226 F.3d 568, 572 (7th
Cir. 2000) (citing Martin v. Brewer, 830 F.2d 76, 76 (7th Cir.
1987)). To assert a cause of action for interference with or
denial of one’s mail under the First Amendment, a prisoner
must “allege[ ] a continuing pattern or repeated occurrences of
such conduct.” Id. (citing Sizemore v. Williford, 829 F.2d 608, 609
(7th Cir. 1987)).
...
Here, Harmon has failed to state a claim against any
named defendant for violating his First Amendment rights
because he has not identified a pattern of repeated occurrences.
His complaint alleges a single rejection in April 2015 of a
catalogue containing thumbnail images. See Zimmerman, 226
F.3d at 572; Sizemore, 829 F.3d at 610-11. He asserts that the
defendants deemed the images violative of prison policy
because they contained nudity, though the images did not, by
his account, depict nudity. Regardless of the contents of the
images in question, Harmon’s claim fails because he complains
of a one-time issue.
Harmon v. Walton, No. 15-CV-1351-MJR, 2016 WL 5243005 at *2-3 (S.D. Ill.
Sept. 22, 2016). Here, the plaintiff does not challenge the denied publications

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policy itself, but merely Schneider and Larson’s alleged abuse thereof. Their
actions, however, were isolated. The plaintiff has not identified a pattern of
conduct, but instead complains of problems with one batch of magazines he
ordered in June 2016. This is insufficient to state a First Amendment claim.
Because the plaintiff has failed to present any viable causes of action after
being given an opportunity to amend his complaint, this action must now be
dismissed with prejudice.
Accordingly,
IT IS ORDERED that this action be and the same is hereby
DISMISSED with prejudice 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 a copy of this order be sent to the
warden of the institution where the inmate is confined; and
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.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 31st day of January, 2017.
BY THE COURT:

J.P. Stadtmueller
District Judge
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