Phoneprasith et al v. Clarke

Filing 13

ORDER signed by Judge J.P. Stadtmueller on 9/7/2017 regarding 12 Plaintiff's Amended Complaint. Plaintiff PERMITTED to proceed against Defendant on claim of interference with visitation right in violation of Plaintiff's substantive due process rights under the Fourteenth Amendment. Copies of this Order and Plaintiff's Amended Complaint to be electronically sent to Milwaukee County for service on Defendant, who shall file a responsive pleading within 60 days. Plaintiff identified as A.P. DISMISSED from action. (cc: all counsel, via mail to Robert Phoneprasith at Dodge Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT PHONEPRASITH and A.P.,
Plaintiffs,

v.

Case No. 17-CV-970-JPS

DAVID A. CLARKE, JR.,
Defendant.

ORDER

On August 16, 2017, the Court screened Plaintiff’s complaint.
(Docket #11). The Court found that Plaintiff’s complaint was not viable
because he attempted to include piecemeal amendments to the document.
Id. at 3.1 The Court required Plaintiff to offer an amended complaint no later
than September 6, 2017. Id. at 3-4. On September 1, 2017, Plaintiff submitted
an amended complaint. (Docket #12).
As noted in its August 16, 2017 screening order on the initial
complaint, 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 #11 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 #11 at 1-3).

The Court’s first screening order also noted that A.P., Plaintiff’s daughter,
could not be a plaintiff in this action without signing the complaint. (Docket #11 at
3). She has not signed the amended complaint. (Docket #12 at 7). The Court will,
therefore, dismiss her as a party to this action. See Fed. R. Civ. P. 11(a).
1

Plaintiff’s amended complaint advances two claims. First, pursuant
to Milwaukee County Jail (“Jail”) policy set by Defendant David A. Clarke,
Jr. (“Clarke”), the Milwaukee County Sheriff, Plaintiff was not allowed to
receive visits from his daughter, a minor child at the time. (Docket #12 at 2).
Plaintiff states that the policy was enforced against him from February 2008
until July 2011 while he was detained at the Jail. Id. Inmates have a basic
right to maintain familial relations, subject to the institution’s penological
needs. Stojanovic v. Humphreys, 309 F. App’x 48, 50-52 (7th Cir. 2009).
Plaintiff may therefore proceed on this claim as one for violation of his
substantive due process rights. Id. Reading the amended complaint
liberally, the Court further finds that Clarke may be sued in his personal
capacity. Though not explicitly stated by Plaintiff, it is reasonable to infer
from his allegations that Clarke, as the head policymaker for the Jail, is
personally responsible for creating and enforcing the visitation policy. See
Doyle v. Camelot Care Ctrs., Inc., 305 F.3d 603, 615 (7th Cir. 2002).
Plaintiff’s second claim is for “denial of access to an adequate law
library.” (Docket #12 at 4). He claims that the Jail’s limited law library and
its procedures for handling copy requests slowed his preparation and filing
of legal documents. Id. at 3-5. This is in the vein of an access-to-courts claim.
The Seventh Circuit has established a two-part test for analyzing such
claims: “[f]irst, the prisoner must prove that prison officials failed to assist
in the preparation and filing of meaningful legal papers. . . . Second, he must
show some quantum of detriment caused by the challenged conduct of state
officials.” Lehn v. Holmes, 364 F.3d 862, 868 (7th Cir. 2004) (quotation
omitted). In particular, the second element
requires plaintiffs to make specific allegations as to the
prejudice suffered because of the defendants’ alleged
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conduct. This is because the mere denial of access to a prison
law library or to other legal materials is not itself a violation
of a prisoner’s rights; his right is to access the courts, and only
if the defendants’ conduct prejudices a potentially
meritorious challenge to the prisoner’s conviction, sentence,
or conditions of confinement has this right been infringed.
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).
Plaintiff’s access-to-courts claim cannot proceed for two reasons.
First, the focus of Plaintiff’s allegations is on the general inadequacy of the
Jail’s library system. Merely “establishing that his prison’s law library or
legal assistance program is subpar in some theoretical sense” does not
prove the first element described by Lehn. Lewis v. Casey, 518 U.S. 343, 351
(1996). Second, Plaintiff alleges only that his ability to create and file legal
documents was delayed, not prevented entirely. Delays in filing are not the
same as prejudice; “[i]t is missing indispensable legal arguments, not
missing a judicial deadline,” that is the foundation of an access-to-courts
claim. Lilly v. Jess, 189 F. App’x 542, 544 (7th Cir. 2006). “Many a lawyer with
full access to all the world’s legal materials has missed a deadline.” Id.
In sum, the court finds that Plaintiff may proceed against Defendant
on the following claim pursuant to 28 U.S.C. § 1915A(b): interference with
Plaintiff’s right to visit with his daughter, in violation of his substantive due
process rights under the Fourteenth Amendment.
Accordingly,
IT IS ORDERED that pursuant to the informal service agreement
between Milwaukee County and this court, copies of Plaintiff’s amended
complaint and this order are being electronically sent today to Milwaukee
County for service on the Milwaukee County defendant;

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IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between Milwaukee County and this court, Defendant shall file
a responsive pleading to the amended complaint within sixty (60) days of
receiving electronic notice of this order; and
IT IS FURTHER ORDERED that the plaintiff identified as A. P. be
and the same is hereby DISMISSED from this action.
Dated at Milwaukee, Wisconsin, this 7th day of September, 2017.
BY THE COURT:

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

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