Sample v. Department of Corrections et al

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 1/3/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. On or before 1/24/2017, plaintiff to file amended pleading. Wisconsin DOC to collect balance of filing fee from plaintiff's prisoner trust account. (cc: all counsel, via mail to Terrence Sample and Warden at Kettle Moraine Correctional Institution) (cb)

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

Case No. 16-CV-1523-JPS

DEPARTMENT OF CORRECTIONS,
ED WALL, OFFICER SCHNEIDER,
OFFICER LARSON, K. SALINAS,
ROBERT HUMPHREYS, J. BRAUN,
M. GREENWOOD, B. HOMPE, and
C. O’DONNELL,

ORDER

Defendants.

The plaintiff, who is incarcerated at Kettle Moraine Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). This matter comes before the Court on
the plaintiff's motion to proceed in forma pauperis. (Docket #2). The plaintiff
has been assessed and paid an initial partial filing fee of $7.67.
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. 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).

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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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.

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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);
Christopher, 384 F.3d at 881.
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. 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 alleges that he ordered at least one magazine from a list
approved by the Wisconsin Department of Corrections (the “DOC”). (Docket
#1 at 3). Upon receipt of the magazine, an “Officer Schneider” reviewed the
publication himself and refused to give it to the plaintiff “because it [did] not
meet his personal taste.” Id. The plaintiff further alleges that an “Officer
Larson” was involved in the denial as well. Id. at 5.

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In its current form, the plaintiff’s complaint fails to state any viable
claims for relief. First, the only defendants who have any meaningful
allegations attached to them are Schneider and Larsen. None of the other
numerous defendants have any factual allegations tying them to any
violation of law. Even as to Schneider and Larsen, the plaintiff fails to state
when their allegedly improper review occurred. Further, though separately
named as a defendant, the DOC itself is not a suable entity. Walker v. Zunker,
30 Fed. App’x 625, 628 (7th Cir. 2002). Second, the plaintiff’s claims are
undermined by the exhibits he has provided. They show that he ordered
prohibited magazines and that they were appropriately denied pursuant to
DOC policy. (Docket #1-1 at 1, 7-11). It is not clear how, if at all, Schneider
and Larsen’s actions are a part of, or separate from, that process. If the
plaintiff intends to actually challenge the policy itself, he should know that
the Seventh Circuit has upheld its application in a number of contexts. See
Van den Bosch v. Raemisch, 658 F.3d 778, 785-86 and n.8 (7th Cir. 2011). Third,
to the extent the plaintiff complains of having the magazines kept from him
and being disposed of, his remedy is a lawsuit in state court for violation of
prison policies or potentially for conversion. See Rogers v. Morris, 34 Fed.
App’x 481, 482-83 (7th Cir. 2002).
Though it finds no viable claims in the current complaint, the Court
will allow the plaintiff to amend it. If the plaintiff wants to proceed, he must
file such an amended complaint curing the deficiencies in the original
complaint as described herein. The amended complaint must be filed on or
before January 24, 2017. Failure to file an amended complaint within this
time period may result in dismissal of this action. The plaintiff is advised that

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the amended complaint must bear the docket number assigned to this case
and must be labeled “Amended Complaint.” The plaintiff is further advised
that a successful complaint alleges “the who, what, when, where, and how:
the first paragraph of any newspaper story.” See DiLeo v. Ernst & Young, 901
F.2d 624, 627 (7th Cir. 1990).
The amended complaint supersedes 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 Seventh Circuit 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); see also Pintado v. MiamiDade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general
matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,
1215 (11th Cir. 2006)). If an amended complaint is received, it will be
screened pursuant to 28 U.S.C. § 1915A.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed
in forma pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that on or before January 24, 2017, the
plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;

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IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
prisoner trust account the balance of the filing fee by collecting monthly
payments from the 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 FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined; and
IT IS FURTHER ORDERED 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; doing so will only delay the processing of this matter.
The 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 3rd day of January, 2017.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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