Strong v. Outagamie County Sheriff's Department et al

Filing 12

ORDER signed by Judge Pamela Pepper on 7/30/2018. 2 Plaintiff's MOTION for leave to proceed without prepayment of filing fee GRANTED; agency having custody of plaintiff to collect $350 balance of filing fee from plaintiff's prison tr ust account under 28 USC §1915(b)(2). Defendants Verheyen, Wisconsin Municpal Mutual Insurance Co., Beauvais and Outagamie County Sheriff's Department DISMISSED. US Marshal to serve copy of complaint and this order on defendant Lance Wilson under FRCP 4. Defendant Wilson to file responsive pleading. Parties may not begin discovery until the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Dennis Strong and Warden at Redgranite Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DENNIS STRONG,
Plaintiff,
v.

Case No. 18-cv-237-pp

OUTAGAMIE COUNTY SHERIFF’S DEPARTMENT,
DOUGLAS L. VERHEYEN, LANCE L. WILSON,
CHAD A. BEAUVAIS AND WISCONSIN
MUNICIPAL MUTUAL INSURANCE COMPANY,
Defendants.
______________________________________________________________________________
ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT NO. 2) AND
SCREENING COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff, a state prisoner who is representing himself, filed a
complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil
rights. Dkt. No. 1. This decision resolves the plaintiff’s motion for leave to
proceed without prepayment of the filing fee, dkt. no. 2, and screens his
complaint, dkt. no. 1.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
(Dkt. No. 2)
The Prison Litigation Reform Act applies to this case because the plaintiff

was in custody when he filed his complaint. 28 U.S.C. §1915. That law allows a
court to give an incarcerated plaintiff the ability to proceed with his case
without prepaying the civil case filing fee, if he meets certain conditions. One of
those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C.
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§1915(b). Once the plaintiff pays the initial partial filing fee, the court may
allow the plaintiff to pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
On February 20, 2018, the court waived the initial partial filing fee. Dkt.
No. 5. The court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filing fee, and will allow him to pay the $350 filing fee over
time in the manner explained at the end of this order.
II.

Screening the Plaintiff’s Complaint
A.

Federal Screening Standard

The law requires the court 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). The court must dismiss a complaint
if the plaintiff raises claims that are legally “frivolous or malicious,” that fail to
state a claim upon which the court cannot grant relief, or that seek monetary
relief from a defendant who is immune from that relief. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1)
someone deprived him of a right secured by the Constitution or laws of the
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United States; and 2) the defendant was acting under color of state law.
Buchanan-Moore v. Cty. 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 gives a pro se
plaintiff’s 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)).
B.

The Plaintiff’s Allegations

The plaintiff, who was confined at the Outagamie County Jail during the
events he describes in the complaint, has sued the Outagamie County Sheriff’s
Department, Lieutenant Douglas L. Verheyen, Sergeant Lance L. Wilson, Chad
A. Beauvais and the Wisconsin Municipal Mutual Insurance Company. Dkt.
No. 1.
The plaintiff alleges that on January 16, 2016, defendant Wilson sexually
harassed him. Id. at 6. Allegedly, Wilson stated, “Welcome home sweetheart,” to
the plaintiff while “exhibiting a physical gesture of a kiss and a sound effect
thereof followed with a wink of the eye directed explicitly to Strong.” Id.
The plaintiff alleges that about forty-five days later, in March 2016, he
“returned” to the jail (the court assumes that he was out of custody in the
meantime). Id. The plaintiff states that following his return, he reported
Wilson’s conduct “to various parties to include those from DOC [Department of
Corrections] and OCSO [Outagamie County Sheriff’s Office].” Id. at 7. According
to the plaintiff, he subsequently met with Wilson’s supervisor, defendant
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Verheyen, and gave Verheyen “explicit details of Wilson’s sexual harassment
upon Strong on 1/16/2016 as well as occasions prior.” Id. Verheyen allegedly
had the plaintiff moved “to the most luxurious [area] of the jail for lock-up
inmates as a condition Strong does not pursue further issues into Wilson’s
sexual harassment upon Strong[.]” Id. The plaintiff alleges that jail security
classification specialist Chad Beauvais opposed the move, “given Strong’s
history of concerns and current need for a high security housing setting at the
time.” Id.
The plaintiff allegedly returned to the jail on June 19, 2016, with a
release date of October 17, 2016. Id. On October 7, 2016, the plaintiff learned
that his daughter had died suddenly on October 6, 2016. Id. Appleton Police
Department Detective Neil Rabas was investigating the death; he informed the
plaintiff that the funeral service was scheduled for October 12, 2016 in the City
of Appleton, at a church about two miles from the jail. Id. at 8. The plaintiff
alleges that he asked Wilson (the supervisor on duty at the jail at the time) to
telephone family about the death and for details of the funeral, to contact a
family attorney so that attorney could ask Judge Krueger for a three- to fourhour court-ordered furlough to allow the plaintiff to attend the funeral. Id.
Wilson allegedly denied the plaintiff’s request to call his family and to contact
an attorney. Id. The plaintiff says that Wilson told him that Wilson would
contact Judge Krueger on the plaintiff’s behalf to request a furlough. Id. at 9.
According to the plaintiff, before the funeral service, Wilson informed him that

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Judge Krueger denied the plaintiff a furlough to attend his daughter’s funeral
(which was scheduled five days before his release from jail). Id.
The plaintiff alleges that the jail provides an electronic communication
system for inmates and that, at that time, “such electronic communications
were limited to inmates contacting the jail accounting staff and housing
classification specialist Chad Beauvais.” Id. According to the plaintiff, after his
“encounter” with Wilson to try to contact family and an attorney, the plaintiff
sent Beauvais via electronic messaging text an “offender management system”
document that Beauvais refused to process. Id.
The plaintiff alleges that on March 22, 2017, he returned to the jail, and
that on June 2, 2017, he appeared before Judge Krueger for his court case. Id.
During the hearing, Judge Krueger allegedly said that neither the death of the
plaintiff’s daughter or the request for a furlough to attend the funeral had been
brought to the court’s attention. Id. at 11.
Next, the plaintiff alleges that on September 27 and 28, 2017, a
consultant conducted an audit at the jail “for the United States Department of
Justice for the Prison Rape Elimination Act (PREA).” Id. The plaintiff allegedly
met with the consultant on both days, sharing a “summary of the above sexual
harassment from Wilson and the events that followed” and meeting at length
with the consultant to discuss the situation. Id. The plaintiff states that in
October 2017, Lieutenant Brian Wirtz told him that the issues the plaintiff
raised to the PREA auditor “were the most significant of inmate generated
PREA related concerns to have surfaced during the above audit of the
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Outagamie County Jail.” Id. The plaintiff believes that Wilson “destroyed
and/or misplaced documents sent to Strong by Wirtz on 10/6/17, the 1 year
anniversary of the death of Strong’s daughter that were to be provided to
Strong on instruction of Wirtz by Wilson’s office as a retaliatory act of Strong
having met with the PREA auditor.” Id.
The plaintiff asserts that on “several occasions” during his current stay
at the jail, Wilson “denied Strong services of a notary public to notarize legal
pleadings or required documents as a deliberate attempt to obstruct/impede
and/or frustrate Strong’s access to the courts in various other matters as an
act of retaliation upon Strong” for filing a complaint about Wilson’s sexual
harassment. Id. at 12.
The plaintiff claims that Wilson retaliated against him for filing a
complaint about the sexual harassment by the above-described alleged
interference with his access to the courts, by denying the plaintiff’s access to
contact an attorney and family members, and by preventing the plaintiff from
obtaining a furlough to attend his daughter’s funeral. Id. at 12-13.
Next, the plaintiff claims that Beauvais’s actions “to prevent Strong from
timely communicating to the jail captain . . . was an effort of Beauvais
preventing Strong from bringing concerns of the sexual harassment and
retaliation by Wilson upon Strong to the administrator of the jail.” Id. at 13.
The plaintiff also claims that Verheyen’s actions “to bribe Strong from
pursuing a formal complaint on the sexual harassment with movement of
Strong to a jail housing accommodation of a luxurious area within the jail is
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egregious conduct of a high ranking officer of the Outagamie County Sheriff’s
Department while performing ministerial duties to inmates to include that of
Strong at the jail.” Id.
The plaintiff claims that the sheriff’s department is liable under Wis.
Stat. §895.46 (State and political subdivisions thereof to pay judgments taken
against officers) and that the Wisconsin Municipal Insurance Company is liable
because “[t]he acts of Verheyen, Wilson, and Beauvais took place in upper
management, supervisory and specialized roles/positions within the Outagamie
County Sheriff’s Department and were done willfully and intentionally with
deliberate planning and/or act.” Id. at 14.
The plaintiff seeks compensatory and punitive damages. Id. at 3. He also
seeks declaratory and injunctive relief. Id.
C.

The Court’s Analysis

To state a First Amendment retaliation claim, the 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; and (3)
the protected activity he engaged in was at least a motivating factor for the
retaliatory action. Archer v. Chisholm, 870 F.3d 603, 618 (7th Cir. 2017) (citing
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)).
The plaintiff has alleged sufficient facts to allow him to proceed on a
retaliation claim against Wilson. He claims that he exercised a First
Amendment right—complaining about Wilson’s alleged sexual harassment—
and that as a result, Wilson attempted to interfere with the plaintiff’s access to
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the courts, would not let the plaintiff contact his family or an attorney after his
daughter died and lied about requesting a furlough for the plaintiff so that the
plaintiff could attend his daughter’s funeral.
The plaintiff has not alleged facts to support a retaliation claim against
Verheyen or Beauvais. Rather than asserting that Verheyen deprived him of
anything, the plaintiff alleges that Verheyen engaged in the “egregious” conduct
of offering to move the plaintiff to a “luxurious” area of the jail if the plaintiff
would not complain about the harassment. The plaintiff does not allege that he
suffered any deprivation based on Verheyen’s statement. It is also not clear
whether the plaintiff moved to a “luxurious” area of the jail or not, but offering
to make someone’s situation better in exchange for silence does not constitute
First Amendment retaliation. With respect to Beauvais, the plaintiff alleges only
that Beauvais opposed the plaintiff’s transfer to a luxurious area of the jail
based on the plaintiff’s security classification, and that the plaintiff sent an
electronic message that Beauvais refused to process. These allegations do not
state a retaliation claim. The court will dismiss Verheyen and Beauvais.
The plaintiff also sues the Outagamie County Sheriff’s Department. The
plaintiff cannot hold the sheriff’s department liable under §1983. Under
Wisconsin law, the sheriff’s department is an arm of the County. See Abraham
v. Piechowski, 13 F. Supp. 2d 870, 877-879 (E.D. Wis. 1998). This means that
the “Sheriff's Department is not a legal entity separable from the county
government which it serves . . . .” Whiting v. Marathon Cty. Sherriff’s Dep’t,
382 F.3d 700, 704 (7th Cir. 2004). A plaintiff cannot sue a sheriff’s department
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under §1983. The court will dismiss the Outagamie County Sheriff’s
Department as a defendant.1
As for Wisconsin Municipal Mutual Insurance Company, although the
county’s insurance company may be obliged to indemnify county officials if
they are found liable under §1983, the plaintiff cannot sue the insurance
company under §1983 because it is not a state actor, and the plaintiff has not
alleged that the insurance company deprived him of any constitutional rights
while acting under the color of a state statute. See Wagner v. Washington Cty.,
493 F.3d 833, 836 (7th Cir. 2007) (citing Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 155-56 (1978)); see also Thurman v. Vill. of Homewood, 446 F.3d 682,
687 (7th Cir. 2006). The court will dismiss the insurance company.
III.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court DISMISSES defendants Outagamie County Sheriff’s
Department, Verheyen, Beauvais and Wisconsin Municipal Mutual Insurance
Company.

Although not entirely clear, the plaintiff may have intended to allege an official
capacity claim against the Sheriff’s Department. If that is what he was trying to
do, the proper defendant would be Outagamie County. To prevail against a
county, the plaintiff would have to demonstrate that he suffered a deprivation
of his constitutional rights based on some official policy, widespread custom or
deliberate act of a county decision maker of the municipality or department.
See Wagner v. Washington Cty., 493 F.3d 833, 836 (7th Cir. 2007) (citing
Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 690-91 (1978)). The
plaintiff has not stated such a claim.
1

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The court ORDERS the United States Marshal to serve a copy of the
complaint and this order on defendant Lance L. Wilson under Federal Rule of
Civil Procedure 4. Congress requires the U.S. Marshals Service to charge for
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 the plaintiff information on how to remit payment. The
court is not involved in collection of the fee.
The court ORDERS defendant Wilson to file a responsive pleading to the
complaint.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $350 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 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 the plaintiff transfers to another county, state or federal institution, the
transferring institution shall forward a copy of this order, along with the
plaintiff's remaining balance, to the receiving institution.

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The court will send a copy of this order to the officer in charge of
Redgranite Correctional Institution.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the court.2 If the plaintiff is not
incarcerated at a Prisoner E-Filing institution, he must submit 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
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises plaintiff that, if he fails to file documents or take other
required actions by the deadlines the court sets, the court may dismiss the
case based on his failure to prosecute. The parties must notify the clerk of
court of any change of address. Failure to do so could result in orders or other

The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
2

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information not being timely delivered, thus affecting the legal rights of the
parties.
Dated at Milwaukee, Wisconsin this 30th day of July, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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