Barfell v. Prekop et al

Filing 13

SCREENING ORDER signed by Judge J.P. Stadtmueller on 4/16/2018 re 9 Amended Complaint. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; 10 Plaintiff's Second Motion for Leave to Proceed Witho ut Prepayment of the Filing Fee DENIED as moot. Agency having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order. Defendant Winnebago County Jail DISMISSED from action. Plaintiff PER MITTED to proceed on access-to-courts claim against Defendants Deputy Bauer, Deputy Vergutz, Deputy Veness, Sgt. Durrant, Sgt. Manthey, W212, W114, Deputy Farr, Deputy Sadouska, Lt. Rozek, Lt. Lichtensteiger, Deputy Moon, W126, Deputy Lemmer, Deputy Mathwig, Deputy Archer, W216, and Deputy Stenson. U.S. Marshals Service to SERVE copy of Amended Complaint and this Order on such defendants, who shall FILE a responsive pleading to the Amended Complaint. 11 Plaintiff's Motion to Consolidat e Cases DENIED. 12 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. Case RETURNED to Magistrate Judge William E. Duffin for further proceedings. Parties may not begin discovery until a Scheduling Order is entered. See Order for further details. (cc: all counsel, via mail to Thomas H L Barfell and Sheriff at Winnebago County Jail)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS H. L. BARFELL,
Plaintiff,
v.

Case No. 17-CV-1739-WED-JPS

WINNEBAGO COUNTY
JAIL, DEPUTY BAUER, DEPUTY
VERGUTZ, DEPUTY VENESS, SGT.
DURANT, SGT. MANTHEY, W212,
W114, DEPUTY FARR, DEPUTY
SADOUSKA, LT. ROZEK, LT.
LICHTENSTEIGER, DEPUTY MOON,
W126, DEPUTY LEMMER, DEPUTY
MATHWIG, DEPUTY ARCHER,
W216, and DEPUTY STENSON,

ORDER

Defendants.
Plaintiff Thomas H. L. Barfell, a Wisconsin state prisoner who is
representing himself, filed a complaint under 42 U.S.C. § 1983, alleging
that Defendants violated his civil rights. This case is currently assigned to
Magistrate Judge William E. Duffin. Not all parties have had the
opportunity to fully consent to magistrate judge jurisdiction under 28
U.S.C. § 636(c). Therefore, this matter is before this branch of the Court for
the limited purpose of screening the amended complaint, (Docket #9) and
resolving pending motions, (Docket #2, #10, #11, #12).
1.

Plaintiff’s Motion to Proceed Without Prepayment of the Filing
Fee
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §

1915. The law allows an incarcerated plaintiff to proceed with his lawsuit
without prepaying the filing fee, as long as he meets certain conditions.
One of those conditions is that the plaintiff pay an initial partial filing fee.
Id. § 1915(b). Once plaintiff pays the initial partial filing fee, the Court may
allow him to pay the balance of the $350 filing fee over time, through
deductions from his prison trust account. Id.
On December 19, 2017, Magistrate Duffin waived the initial partial
filing fee in this action because Plaintiff neither had the assets nor the
means to pay it. (Docket #5). Magistrate Duffin ordered Plaintiff to notify
the court by January 9, 2018 if he wanted to voluntarily dismiss the action
to avoid the potential to incur a strike under Section 1915(g). Plaintiff did
not voluntarily dismiss; therefore, the Court will grant his motion to
proceed without prepayment of the filing fee and will screen his amended
complaint.
2.

Screening the Amended 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. Id. § 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); Gladney v. Pendelton
Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002). 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,
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490 U.S. at 327; Gladney, 302 F.3d at 774. “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 (7th Cir.
2003); Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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). It
is not necessary for the plaintiff to plead specific facts; 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)); Christopher v. Buss,
384 F.3d 879, 881 (7th Cir. 2004). However, a complaint that offers “‘labels
and conclusions’” or “‘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, accepted as true, “‘that 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. The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher,
384 F.3d at 881.
In considering whether a complaint states a claim, courts should
first “identif[y] pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are wellpleaded factual allegations, the Court must “assume their veracity and
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then determine whether they plausibly give rise to an entitlement to
relief.” Id. The Court is obliged to give 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)).
Plaintiff is an inmate at the Winnebago County Jail (“WCJ”).
Defendants are: WCJ, Deputy Bauer, Deputy Vergutz, Deputy Veness, Sgt.
Durrant, Sgt. Manthey, W212, W114, Deputy Farr, Deputy Sadouska, Lt.
Rozek, Lt. Lichtensteiger, Deputy Moon, W126, Deputy Lemmer, Deputy
Mathwig, Deputy Archer, W216, and Deputy Stenson.
Plaintiff’s amended complaint includes numerous grievances
against nineteen different defendants. The grievances range in topic from
denial of use of the library, inadequate religious services, denial of a
haircut for trial, issues with his mail—legal and personal, food trays
sitting out in the kitchen too long, the phone use policy, the new
“dayroom” policy, the temperature, and sleeping arrangements.
According to Plaintiff, between September 2017 and January 2018,
he tried to file inmate grievances to resolve these issues and all of the
named Defendants at one point or another denied him an inmate
grievance form. Often times when Plaintiff asked for an inmate grievance
form, Defendants would respond by saying that he did not need one
because his complaint “isn’t a grievable issue.” (Docket #9 at 6). For relief,
Plaintiff seeks a change in policy and monetary damages.
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.
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County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446
U.S. 635, 640 (1980).
At the outset, the Court must dismiss WCJ as a defendant. A
county jail is not a “person” subject to suit under Section 1983. See
Nawrocki v. Racine Cty. Jail, No. 08-CV-96-BBC, 2008 WL 4417314, at *1
(W.D. Wis. Mar. 7, 2008) (“[A] building is not a proper party to a lawsuit
brought under 42 U.S.C. § 1983.”).
As to the other defendants, to state a valid access-to-courts claim,
Plaintiff must allege that: (a) prison officials failed to help him prepare
and file meaningful legal papers, and (b) that he lost a valid legal claim or
defense because of the challenged conduct. Ortiz v. Downey, 561 F.3d 664,
671 (7th Cir. 2009). Plaintiff appears to identify a systemic problem at WCJ
where inmates are not able to utilize the inmate grievance system to
resolve problems. It appears that jail staff make determinations on
whether or not a complaint is “grievable” prior to handing over an inmate
grievance form, and inmates have no way to appeal a staff member’s
decision that a complaint is not “grievable.” Inmates must exhaust
administrative remedies prior to filing in federal court, and plaintiff’s
allegations suggest that he may have been denied the ability to exhaust,
and therefore denied access to the courts. However, it is less clear whether
Plaintiff has lost a valid legal claim or defense because of Defendants’
conduct. It is possible that Plaintiff may have missed the statute of
limitations on some of his claims because he was not able to exhaust
administrative remedies, but that is not certain based solely on the
pleadings.
Given the early juncture in this case and the liberal standard of
review applied on screening, the Court will allow Plaintiff to proceed with
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an access-to-courts claim against the named Defendants: Deputy Bauer,
Deputy Vergutz, Deputy Veness, Sgt. Durrant, Sgt. Manthey, W212, W114,
Deputy Farr, Deputy Sadouska, Lt. Rozek, Lt. Lichtensteiger, Deputy
Moon, W126, Deputy Lemmer, Deputy Mathwig, Deputy Archer, W216,
and Deputy Stenson. Plaintiff may not proceed with any other claims
regarding the issues raised in his underlying grievances because they do
not share common issues of fact or law. Fed. R. Civ. P. 20(a).
3.

Plaintiff’s Motion to Consolidate
Plaintiff asks to consolidate this case with: (1) Barfell v. Correctional

Health Care Companies, Case No. 17-CV-1365-WED-JPS (E.D. Wis.); and (2)
Barfell v. Aramark, Case No. 17-CV-1567-WED-JPS (E.D. Wis.) because it
will be less costly. See (Docket #11). Plaintiff cannot consolidate these
lawsuits because they do not share common questions of law and fact. See
Fed. R. Civ. P. 42(a). Therefore, the Court will deny Plaintiff’s motion to
consolidate.
4.

Plaintiff’s Motion to Appoint Counsel
Plaintiff also asks for Court-appointed counsel. (Docket #12). In a

civil case, the Court has discretion to recruit a lawyer for someone who
cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013).
However, the litigant must first make reasonable efforts to hire private
counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). In this
district, a plaintiff can satisfy this requirement by providing the Court
with: (1) the attorneys’ names, (2) the addresses, (3) the date and way the
plaintiff attempted to contact them, and (4) the attorneys’ responses.
Once the plaintiff makes reasonable attempts to hire counsel, the
Court then decides “whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to
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coherently present it.” Navejar, 718 F.3d at 696. The Court looks not only at
the plaintiff’s ability to try his case, but also at his ability to perform other
“tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.
Plaintiff states that has made “repeated efforts to obtain a lawyer.”
(Docket #12). He appears to have written out the text of a letter he
allegedly sent to attorneys requesting counsel. (Docket #12-1). As
discussed above, Plaintiff must prove that he actually attempted to contact
lawyers by providing the Court with the following information: (1) the
attorneys’ names, (2) the addresses, (3) the date and way he attempted to
contact them, and (4) the attorneys’ responses. Plaintiff has not satisfied
this requirement. “[D]eciding whether to recruit counsel ‘is a difficult
decision: Almost everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing and able to
volunteer for these cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)). Thus,
Plaintiff must first do what is required of him before the Court will
consider appointing counsel. Therefore, the Court will deny without
prejudice Plaintiff’s motion for the appointment of counsel.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to proceed without
prepayment of the filing fee (Docket #2) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s second motion for
leave to proceed without prepayment of the filing fee (Docket #10) be and
the same is hereby DENIED as moot;

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IT IS FURTHER ORDERED that the agency having custody of
plaintiff shall collect from his institution trust account the balance of the
filing fee by collecting monthly payments from plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to plaintiff’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. If plaintiff transfers to another county,
state, or federal institution, the transferring institution shall forward a
copy of this order, along with plaintiff’s remaining balance, to the
receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined;
IT IS FURTHER ORDERED that Plaintiff’s motion to consolidate
(Docket #11) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to appoint
counsel (Docket #12) be and the same is hereby DENIED without
prejudice;
IT IS FURTHER ORDERED that WCJ be and the same is hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the amended complaint and this order on defendants
Deputy Bauer, Deputy Vergutz, Deputy Veness, Sgt. Durrant, Sgt.
Manthey, W212, W114, Deputy Farr, Deputy Sadouska, Lt. Rozek, Lt.
Lichtensteiger, Deputy Moon, W126, Deputy Lemmer, Deputy Mathwig,
Deputy Archer, W216, and Deputy Stenson under Federal Rule of Civil
Procedure 4. Congress requires the U.S. Marshals Service to charge for
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making or attempting such service. 28 U.S.C. § 1921(a). Although
Congress requires the court to order service by the U.S. Marshals Service,
it has not made any provision for either the court or the U.S. Marshals
Service to waive these fees. The current fee for waiver-of-service packages
is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§
0.114(a)(2), (a)(3). The U.S. Marshals will give plaintiff information on how
to remit payment. The court is not involved in collection of the fee;
IT IS FURTHER ORDERED that Defendants Deputy Bauer,
Deputy Vergutz, Deputy Veness, Sgt. Durrant, Sgt. Manthey, W212, W114,
Deputy Farr, Deputy Sadouska, Lt. Rozek, Lt. Lichtensteiger, Deputy
Moon, W126, Deputy Lemmer, Deputy Mathwig, Deputy Archer, W216,
and Deputy Stenson shall file a responsive pleading to the complaint;
IT IS FURTHER ORDERED that the Court RETURNS this case to
Magistrate Judge William E. Duffin for further proceedings;
IT IS FURTHER ORDERED that the parties may not begin
discovery until after the court enters a scheduling order setting deadlines
for discovery and dispositive motions; and
IT

IS

FURTHER

ORDERED

that

Plaintiff

to

mail

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 JUDGE’S
CHAMBERS. It will only delay the processing of the case.

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Dated at Milwaukee, Wisconsin, this 16th day of April, 2018.
BY THE COURT:

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

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