Chapman v Migala et al

Filing 13

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 7/27/2017. 12 Magistrate Judge Joseph's Report and Recommendations ADOPTED entirely and her conclusions and the reasoning supporting them incorporated into this order. Case DISMISSED under 28 USC §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. Clerk of Court to document that this inmate has incurred a "strike" under 28 USC §1915(g). (cc: all counsel, via mail to Marquis Chapman at Wisconsin Secure Program Facility(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MARQUIS CHAPMAN,
Plaintiff,
v.

Case No. 17-cv-266-pp

CO MIGALA,
CAPTAIN LUNDMARK, and
SECURITY DIRECTOR ACHTERBERG,
Defendants.
______________________________________________________________________________
DECISION AND ORDER ADOPTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION (DKT. NO. 12) AND
DISMISSING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
On February 27, 2017, the plaintiff, who is representing himself, filed a
complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil
rights. Dkt. No. 1. A few days later, the plaintiff consented to the jurisdiction of
U.S. Magistrate Judge Nancy Joseph. Dkt. No. 5. The next day, on March 3,
2017, Judge Joseph screened the plaintiff’s complaint and dismissed the case
under 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1), based on the plaintiff’s failure
to state a claim. Dkt. No. 8.
The plaintiff filed a motion for reconsideration, arguing that a magistrate
judge can dismiss a case only if all of the parties have consented. Dkt. No. 10.
The plaintiff further argued that, because only the plaintiff (but not the
defendants) had consented to magistrate judge jurisdiction, Judge Joseph did
not have the authority to dismiss his case. Id. Based on a recent case from the

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Seventh Circuit Court of Appeals, Judge Joseph agreed, and granted the
plaintiff’s motion for reconsideration. Dkt. No. 11(see Coleman v. Labor and
Industry Review Commission of Wisconsin, 860 F.3d 461 (7th Cir. 2017)).
On June 28, 2017, Judge Joseph vacated her dismissal order, construed
the dismissal order as a report and recommendation, and asked the clerk’s
office to randomly reassign the case to a district court judge for a decision on
the report and recommendation. The clerk’s office assigned the case to this
court.
Judge Joseph recommends that the court dismiss the plaintiff’s
complaint because he fails to state a claim upon which relief can be granted.
Dkt. No. 12 at 7. She further recommends that the court give the plaintiff a
strike under 28 U.S.C. § 1915(g). The plaintiff did not object to Judge Joseph’s
recommendation.
The court has reviewed Judge Joseph’s report and recommendation and
agrees with her analysis of the plaintiff’s complaint. The plaintiff’s complaint
does not contain any facts indicating that, in writing the conduct report against
the plaintiff, Migala was motivated by a desire to discourage the plaintiff from
exercising his First Amendment rights. The plaintiff’s own version of the facts
demonstrates that Migala had other motivation for writing up the conduct
report—the plaintiff’s refusal to return Migala’s key. Without some facts
indicating that the plaintiff’s threat to file an inmate complaint against Migala
was “at least a motivating factor” in Migala’s decision to write the conduct
report, the plaintiff cannot state a retaliation claim against Migala. The
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plaintiff’s case against Acterberg is even thinner. He alleges that Acterberg
refused to require Migala to testify at the disciplinary hearing because
Acterberg was deliberately avoiding knowing the truth about Migala’s
misconduct. Even if this is true, it doesn’t state a First Amendment retaliation
claim. A motivation to avoid the truth is not a motivation to chill someone’s
First Amendment rights.
The court ADOPTS Judge Joseph’s report and recommendation entirely,
and incorporates her conclusions and the reasoning supporting those
conclusions in this order.
The court ORDERS that this case is DISMISSED under 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
The court further ORDERS that the Clerk of Court document that this
inmate has incurred a “strike” under 28 U.S.C. §1915(g).
Dated in Milwaukee, Wisconsin this 27th day of July, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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