Long v. Pock et al

Filing 18

ORDER signed by Judge J.P. Stadtmueller on 1/12/2018: DISMISSING CASE with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; DIRECTING Clerk of Court to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g); and CERTIFYING that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bona fide arguments supporting his appeal. (cc: all counsel, via mail to Cody A. Long and Warden at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CODY A. LONG,

v.

Plaintiff,

Case No. 17-CV-1020-JPS-JPS

CO POCK, JEREMY WESTRA,
SGT. BOSZAK, TONY MELI, and
LT. BURNS,

ORDER

Defendants.
The plaintiff, Cody A. Long, a Wisconsin state prisoner
representing himself, filed a complaint alleging that the defendants
violated his rights under federal law. This matter is before the Court to
screen the plaintiff’s amended complaint. (Docket #17).
This case was previously assigned to Magistrate Judge Nancy
Joseph. However, because not all parties have had the opportunity to
consent to magistrate judge jurisdiction, the case was reassigned to a
District Judge for entry of this order dismissing the case.
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. Id. § 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“Malicious,” although sometimes treated as a synonym for “frivolous,” “is
more usefully construed as intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).
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).
The plaintiff need not 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint
that offers mere “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). To state a claim, a complaint
must contain sufficient factual matter that, accepted as true, “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. at 556). The complaint’s
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation omitted).
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
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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. Vill.
of N. 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)).
In this case, the plaintiff alleges that the defendants failed to file
paperwork about a fight he had with another inmate on March 8, 2017.
(Docket #17 at 2). After the fight, the defendants allegedly talked to the
plaintiff and the other inmate. Id. The plaintiff alleges that after he told the
defendants that he planned to file a lawsuit for failure to protect him, they
“brought him to RGU (aka Seg) as they stripped us in an[d] placed me on
TLU for 303.11 Assault.” Id. at 2-3. The plaintiff seeks monetary relief from
the defendants.
Construed liberally, the plaintiff alleges that the defendants
retaliated against him after he threatened to file a lawsuit. To state a First
Amendment claim for retaliation, a plaintiff must allege that “(1) he
engaged in activity protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity in the
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future; and (3) the First Amendment activity was at least a motivating
factor in the defendants’ decision to take the retaliatory action.” Perez v.
Fenoglio, 792 F.3d 768, 783 (7th Cir. 2015) (quoting Bridges v. Gilbert, 557
F.3d 541, 546 (7th Cir. 2009)). A prisoner has a First Amendment right to
file a lawsuit or make grievances about the conditions of his confinement.
See Bridges, 557 F.3d at 551-52; Watkins v. Casper, 599 F.3d 791, 798 (7th Cir.
2010). However, merely threatening to file a lawsuit or a grievance is not
protected activity. Bridges, 557 F.3d at 555 (“But it seems implausible that a
threat to file a grievance would itself constitute a First Amendmentprotected grievance.”) (emphasis in original). In this case, the plaintiff
alleges that he told the defendants he was going to file a lawsuit, not that
he filed one. Thus, he has not satisfied the first prong of a retaliation claim
and, therefore, he fails to state a claim upon which relief can be granted.
Accordingly,
IT IS ORDERED that this action be and the same is hereby
DISMISSED with prejudice 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 FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
THE COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)
unless the plaintiff offers bona fide arguments supporting his appeal.
The Clerk of the Court is directed to enter judgment accordingly.

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Dated at Milwaukee, Wisconsin, this 12th day of January, 2018.
BY THE COURT:

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

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