Garner v. Hill et al
Filing
7
ORDER signed by Judge Lynn Adelman on 3/1/17 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering that this action is DISMISSED for failure to state a claim. Further ordering the Clerk of Court to documen t that this inmate has incurred a strike under 28 U.S.C. § 1915(g). Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from plaintiffs prison trust account the $316.12 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
OSCAR GARNER,
Plaintiff,
v.
Case No. 17-C-0051
J. HILL, et al.,
Defendants.
______________________________________________________________________
ORDER
Plaintiff Oscar Garner, a Wisconsin state prisoner who is representing himself,
filed a civil rights action under 42 U.S.C. § 1983, alleging that defendants violated his
Fourteenth Amendment rights at the Wisconsin Secure Program Facility (“WSPF”). ECF
No. 1. This matter comes before me on plaintiff’s motion for leave to proceed without
prepayment of the filing fee and for screening of the complaint. ECF Nos. 1-2.
The Prison Litigation Reform Act (“PLRA”) applies to this action because plaintiff
was incarcerated when he filed this complaint. 28 U.S.C. §1915.
The law allows
inmates to proceed with their lawsuits in federal court without pre-paying the $350 filing
fee. Id. The inmate must comply with certain requirements, one of which is to pay an
initial partial filing fee. Id.
On January 23, 2017, I assessed an initial partial filing fee of $33.88. ECF No. 6.
Plaintiff paid that amount on February 1, 2017. Therefore, I will grant plaintiff’s motion to
proceed without prepayment of the filing fee.
The PLRA requires me 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 may dismiss an action or portion thereof 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, plaintiffs must provide
me with 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).
The factual content of the complaint must allow me 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.
I follow the two-step analysis set forth in Twobly to determine whether a
complaint states a claim.
Iqbal, 556 U.S. at 679.
First, I determine 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, I
determine whether the well-pleaded factual allegations “plausibly give rise to an
entitlement to relief." Id. Pro se allegations, “however inartfully pleaded,” are given a
liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
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Gamble, 429 U.S. 97, 106 (1976)).
FACTS
On April 13, 2005, Milwaukee County Circuit Court Judge Karen E. Christenson
entered an order in criminal case no. 04-CF-1584 instructing plaintiff to pay restitution
and other costs in the amount of $3,008.66, payable from up to 25% of his prison
wages. ECF No. 1, ¶ 4. Ten years later, in June 2015, plaintiff received his inmate trust
account statement which indicated that he had an outstanding balance of $2,473.66 for
criminal case no. 04-CF-1584. Id., ¶ 5. On June 30, 2015, someone at WSPF wrote on
plaintiff’s inmate trust account statement that they “took $2,473.66 for court obligations.”
Id., ¶ 6. Ms. Sutter, an Inmate Complaint Examiner (“ICE”), confirmed that plaintiff owed
this amount and was required to pay it. Id., ¶ 7.
About a year later, in June 2016, Ann M. Peacock (not a defendant in the case)
sent plaintiff a letter stating, among other things, that he still owed $2,473.66 in criminal
case no. 04-CF-1584. Id., ¶ 8. Plaintiff wrote to J. Hill (inmate accounts) and told him
that the Milwaukee County Clerk of Court still had not received his payment of
$2,473.66 even though someone had taken the money out of his prison account over a
year ago. Id., ¶ 9. Hill wrote back on August 31, 2016 stating that he sent the money to
the “cashier’s unit.” Id., ¶¶ 9, 35. Plaintiff wrote to the cashier’s unit several times with
no response. Id., ¶¶ 10-11. He also wrote to Hill, Sutter, Molldrem, Boughton, Dickman,
Jim Schwochert, Cathy Jess, and Julio Barron with no response. Id., ¶ 12. Plaintiff also
filed an inmate complaint which was rejected because WSPF had “already addressed
this issue through WSPF-2016-21379,” a different inmate complaint plaintiff had filed
earlier in the year. Id., ¶ 13.
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Plaintiff received an updated trust account statement indicating that he still owed
money in criminal case no. 04-CF-1584. Id., ¶ 14. Along with this statement, plaintiff
received notice that WSPF would now deduct 50% from his prison wages. Id., ¶ 15.
Plaintiff never gave anyone permission to deduct 50% from his prison wages, and the
Milwaukee County Circuit Court never ordered WSPF to start deducting 50% from his
account. Id., ¶¶ 20, 29-32. Plaintiff states that he continues to pay restitution for an
obligation he satisfied sometime in 2015. Id., ¶¶ 24-25, 38-39.
Plaintiff filed a different inmate complaint regarding the 50% deduction, and this
complaint was dismissed because he had “signed a settlement agreement [in WSPF2015-12804] saying that he would pay all restitution owed.” Id., ¶ 33. Plaintiff states that
he never signed a settlement agreement and defendants cannot prove that he did. Id.,
¶¶ 32, 34.
In October 2016, plaintiff asked Ms. Broadbent to print out a case called Bub v.
Fuller. Id., ¶ 21. She looked for the case on LexisNexis and could not find it. Id. She told
plaintiff that if the case is not on LexisNexis, she could not go to other sources to look
for it due to prison rules. Id. Plaintiff states that there are no prison rules prohibiting her
from going to other sources to look for a case. Id., ¶ 22.
DISCUSSION
To state a claim for relief under 42 U.S.C. § 1983, plaintiff must allege that
defendants: 1) deprived him of a right secured by the Constitution or laws of the United
States; and 2) acted under color of state law. Buchanan-Moore 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).
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The Fourteenth Amendment prohibits the state from depriving an individual of
life, liberty, or property without due process of law. U.S. Const. amend. XVI. Courts first
determine which interest is at stake, then determine what process is due. Zinermon v.
Burch, 494 U.S. 113, 128-32 (1990). Deprivations of life or liberty often require predeprivation remedies, such as notice and a hearing, while deprivation of property often
only requires post-deprivation remedies, such as a post-deprivation hearing or commonlaw tort remedies. Id.
A deprivation of property that is “random and unauthorized” is cured with postdeprivation remedies. Id. Conduct is “random and unauthorized” if it is unpredictable.
Hamlin v. Vaudenberg, 95 F.3d 580, 584 (7th Cir. 1996).
For instance, property
confiscated contrary to Department of Corrections (“DOC”) procedure is “random and
unauthorized” because the state cannot predict when or if a deprivation will occur given
that there were rules in place that prison staff were required to follow. See Leavell v. Ill.
Dep't of Nat. Res., 600 F.3d 798, 804-05 (7th Cir. 2010). In such situations, a postdeprivation remedy cures the problem as the State cannot predict beforehand when a
violation will occur. Zinermon, 494 U.S. at 129 (“the State cannot be required
constitutionally to do the impossible by providing pre-deprivation process” for a random
and unauthorized conduct.).
Wisconsin
law
has
post-deprivation
proceedings
to
address
random,
unauthorized deprivations of property by state officers and officials. See Singh v.
Gegare, No. 14-CV-837, 2015 WL 7430027, at *11 (E.D. Wis. Nov. 20, 2015), aff'd, 651
F. App'x 551 (7th Cir. 2016), reh'g denied (June 21, 2016); see also Patrick v.
Wisconsin, No. 13-CV-231-WMC, 2014 WL 576153, at *3 (W.D. Wis. Feb. 12, 2014.
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After an inmate files an offender complaint within the prison, he or she can appeal the
decision to the state Correctional Complaint Examiner (“CCE”), which results in a
decision from the Secretary of the Department of Corrections. Wis. Admin. Code §§
DOC 310.04(3), 310.09. If an inmate disagrees with the CCE’s decision, he or she can
appeal to the Wisconsin state circuit court through a writ of certiorari. See Id.
Wisconsin law also provides tort remedies for those whose property has been
converted or damaged by another. Wis. Stat. §§ 893.35 (action to recover personal
property after wrongful taking, conversion, or wrongful detention), 893.51 (action for
damages resulting from wrongful taking, conversion, or wrongful detention of personal
property), and 893.52 (action for damages from injury to property); see also Hamlin v.
Vaudenberg, 95 F.3d 580, 585 (7th Cir. 1996) (inmate-complaint review system,
certiorari review under Wisconsin law, and Wisconsin tort remedies against prison
officials are adequate remedies for deprivation of good-time credits); Wolf–Lillie v.
Sonquist, 699 F.2d 864, 871 (7th Cir. 1983) (Wisconsin tort remedies are adequate for
deprivation of property resulting from sheriff's execution of outdated writ of restitution).
Plaintiff alleges that defendants’ restitution calculation (50% of prison wages) and
deductions (lump sum deduction of $2,473.66 in 2015) were done contrary to DOC
procedure; thus, he is claiming that defendants’ actions were “random and
unauthorized.” See Gidarisingh v. Pollard, No. 12-CV-455, 2013 WL 5349114, at *15
(E.D. Wis. Sept. 23, 2013), vacated in part on other grounds, 571 F. App'x 467 (7th Cir.
2014). As outlined above, plaintiff has adequate post-deprivation proceedings to
address the issue. As a result, I will dismiss this action for failure to state a claim. See
Zinermon, 494 U.S. at 126 (“The constitutional violation actionable under § 1983 is not
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complete when the deprivation occurs; it is not complete unless and until the State fails
to provide due process”); see also Morris v. McKeever, 655 F.Supp. 388, 391 (W.D.
Va. 1987)(“A suit based on a wrongful act that ignores the existence of a postdeprivation remedy is, in effect, one that considers only partial or unfinished state
action.”).
CONCLUSION
For the reasons stated, IT IS ORDERED that plaintiff’s motion for leave to
proceed without prepayment of the filing fee (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED 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 incurred a “strike” under 28 U.S.C. § 1915(g).
IT IS ALSO ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prison trust account the
$316.12 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 the 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 copies of this order be sent to the warden of the
Wisconsin Secure Program Facility where plaintiff is confined.
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This order and the judgment to follow are final. A dissatisfied party may appeal
this court’s decision to the Court of Appeals for the Seventh Circuit by filing in this court
a notice of appeal within 30 days of the entry of judgment. See Fed. R. of App. P. 3, 4.
This court may extend this deadline if a party timely requests an extension and shows
good cause or excusable neglect for not being able to meet the 30-day deadline. See
Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or amend its
judgment under Federal Rule of Civil Procedure 59(e) or ask for relief from judgment
under Federal Rule of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. The court cannot
extend this deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more than one
year after the entry of the judgment. The court cannot extend this deadline. See Fed. R.
Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if
any, further action is appropriate in a case.
Dated at Milwaukee, Wisconsin, this 1st day of March, 2017.
s/ Lynn Adelman
__________________________
LYNN ADELMAN
District Judge
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