Kind v. Department of Corrections

Filing 9

ORDER signed by Judge Pamela Pepper on 8/2/2017. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; Agency having custody of the plaintiff to collect $334.17 balance of filing fee from plaintiff's prison trust account in accordance with 28 USC §1915(b)(2). If plaintiff wishes to proceed with case, he must file amended complaint by 9/8/2017; failure to file by deadline will result in dismissal of case for failure to state a claim. (cc: all counsel, via mail to Harold Kind and Warden at Oshkosh Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
HAROLD C. KIND, JR.,

Case No. 16-cv-1650-pp
Plaintiff,

v.
DEPARTMENT OF CORRECTIONS,
Defendant.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2)
AND SCREENING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint under 42 U.S.C. §1983, alleging that the Department of
Corrections violated his civil rights. This case comes before the court on the
plaintiff’s motion to proceed without prepayment of the filing fee, dkt. no. 2,
and for screening of the plaintiff’s complaint, dkt. no. 1.
I.

THE PLAINTIFF’S MOTION TO PROCEED WITHOUT PREPAYMENT
OF THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case because

the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915.
The law allows a court to give an incarcerated plaintiff the ability to proceed
with his lawsuit without pre-paying the civil case-filing fee, as long as he meets
certain conditions. Id. One of those conditions is a requirement that the
plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff
pays the initial partial filing fee, the court may allow the plaintiff to pay the
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balance of the $350 filing fee over time, through deductions from his prisoner
account. Id.
On March 14, 2017, the court assessed an initial partial filing fee of
$15.83. Dkt. No. 7. The plaintiff paid that amount on March 29, 2017.
Therefore, the court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filling fee and will allow the plaintiff to pay the balance of the
$350.00 filing fee over time from his prisoner account, as described at the end
of this order.
II.

SCREENING OF THE PLAINTIFF’S COMPLAINT
The PLRA also requires courts to screen any complaint brought by an

inmate seeking relief against a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. §1915A(a). The court may dismiss a case, or part
of it, if the claims alleged are “frivolous or malicious,” fail to state a claim upon
which relief may be 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 Atlantic 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).
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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. 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 support 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
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
A.

Factual Allegations

The plaintiff states that the Department of Corrections (“DOC”) detained
him for eighteen months past his Mandatory Release (“MR”) date. Dkt. No. 1 at
2. He states that the DOC “took it upon there selves [sic] to change a judgment
of conviction that was placed upon [him] back in 2005.” Id. He says that he
never knew that the Department of Corrections could override a judge’s
decision. He also alleges that “they state the[y] can do as they please” and that
“we are being punished greatly because [we] were told we have no rights in
prison.” Id. The plaintiff says that he is “filing on false imprisonment and cruel

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and unusual punishment,” id. at 2, and seeks immediate release from prison
and monetary damages for pain and suffering, id. at 3.
B.

Legal Analysis

To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendant: 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Vill. 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 plaintiff has sued the Department of Corrections. Section 1983
allows a plaintiff to sue a “person” who deprives him of his civil rights under
color of state law. The Department of Corrections is not a person, and so it is
not a proper defendant in a §1983 lawsuit. See Will v. Michigan Dept. of State
Police, 491 U.S. 58, 70-71 (1989); see also Buchanan v. Kenosha, 57
Fed.Supp.2d 675, 677-78 (E.D. Wis. 1999). A plaintiff may sue a “local
government” under §1983, but only if “implementation of [that local
government’s] official policies or established customs inflicts the constitutional
injury.” Monell v. Dep’t of Social Serv’s of City of New York, 436 U.S. 658, 707708 (1978).
The plaintiff alleges that he has been kept in custody long past his MR
date. If that is the case, then someone—or maybe more than one person—at
Oshkosh Correctional or the Department of Corrections made the decision to
keep him in custody. Incarcerating a prisoner beyond the termination of his
sentence without penological justification can violate the Eighth Amendment if
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it is the product of deliberate indifference. Campbell v. Peters, 256 F.3d 695,
700 (7th Cir.2001) (citing Moore v. Tartler, 986 F.2d 682, 686 (3d Cir.1993). To
prove an Eighth Amendment violation such as this, the plaintiff must show
that a particular prison official knew that the plaintiff was being subjected to
unwarranted punishment, that the official failed to act (or took action that was
ineffectual under the circumstances), and that the official’s conduct caused the
unjustified detention. Moore, 986 F.2d at 686.
A person can be held liable under §1983 only if that person was
personally involved in the constitutional deprivation. Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). “An official satisfies the personal [involvement]. .
. if the conduct causing the constitutional deprivation occurs at [his] direction
or with [his] knowledge and consent.” Id. (quoting Crowder v. Lash, 687 F.2d
996, 1005 (7th Cir. 1982)). He “must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye.” Id. (quoting Jones v. City of
Chicago, 856 F.2d 985, 992 (7th Cir. 1988)).
If the plaintiff wants to proceed with this case, he must file an amended
complaint: (1) identifying specific individuals who violated his constitutional
rights, (2) describing what actions these individual took to violate his
constitutional rights, and (3) describing what relief he seeks from those
individuals. See Russell v. Lazar, 300 F. Supp. 2d 716, 720 (E.D. Wis. 2004).
The plaintiff cannot seek release from prison through a §1983 action. See
Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
If the plaintiff files an amended complaint, it must bear the docket
number assigned to this case and must be labeled “Amended Complaint.” The
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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 appellate court emphasized that the “prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading[.]” Id. at
1057 (citation omitted). If the plaintiff does not file an amended complaint by
the deadline the court sets below, the court will dismiss this case without
further notice or hearing for failure to state a claim.
III.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2. The court ORDERS the agency having
custody of the plaintiff to collect from the plaintiff's prison trust account the
$334.17 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 agency shall clearly identify
the payments by the case name and number.
The court ORDERS that if the plaintiff wants to proceed with this case,
he must file an amended complaint, on or before September 8, 2017, following
the court’s instructions. If the plaintiff does not file an amended complaint by
the date listed above, the court will dismiss the case without further notice or
hearing for failure to state a claim.

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The court will send a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS 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. It will only delay the processing of the case.
The court advises the plaintiff that failure to timely file pleadings and
other documents may result in the dismissal of this 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 2nd day of August, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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