Murphy v. Hartman et al.

Filing 9

ORDER signed by Judge Pamela Pepper on 8/27/2018 GRANTING 2 plaintiff's MOTION for leave to proceed without prepayment of the filing fee; agency having custody of plaintiff to collect $348.27 balance of filing fee from plaintiff's pr ison trust account under 28 USC §1915(b)(2). Defendants Muenchow, Wilson, Wisconsin Department of Corrections, Helmer and Kamphuis DISMISSED. Defendant Hartman to file responsive pleading within 60 days. Parties shall not begin discovery until after the court issues scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Shawn Murphy and Warden at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
SHAWN MURPHY,
Plaintiff,
v.

Case No. 18-cv-584-pp

C. HARTMAN, JAMES MUENCHOW,
N. KAMPHUIS, BRETT HELMER,
AIMEE WILSON, and WISCONSIN
DEPARTMENT OF CORRECTIONS,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
______________________________________________________________________________
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 incarcerated 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.
1

§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 May 7, 2018, the court granted the plaintiff’s motion to pay the initial
partial filing fee from his release account, and directed the Waupun
Correctional Institution to forward the initial partial filing fee of $1.73 to the
clerk of court by May 21, 2018. Dkt. No. 8. The court received that fee on June
6, 2018. The court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. He must pay the remainder of the 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 relief may be granted, or that seek monetary relief
from a defendant who is immune from such 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

2

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
United States; and 2) the person who deprived him of that right 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 is incarcerated at the Waupun Correctional Institution
(Waupun). Dkt. No. 1 at 1. He has sued C. Hartman, James Muenchow, N.
Kamphuis, Brett Helmer, Aimee Wilson and the Wisconsin Department of
Corrections. Id. at 1-2.
The plaintiff alleges that defendant C. Hartman works in the Waupun
business office. Id. at 3. He says that on March 30, 2015, all his legal loans
were suspended for thirty days because the plaintiff “had made a mistake
trying to use a loan to file a complaint at Dane Cty Court.” Id. at 3. The plaintiff
states that during the thirty-day suspension, he could not file a petition for
review to the Wisconsin Supreme Court. Id. at 4. According to the plaintiff, the

3

thirty-day deadline to file his petition passed and the Wisconsin Supreme
Court would not enlarge the deadline. Id.
The plaintiff alleges that after the thirty-day suspension, he filed a loan
application for a legal loan for a criminal appeal. Id. at 5. The plaintiff says that
the loan application was denied on May 1, 2015, because the plaintiff did not
make clear what he needed. Id. The plaintiff states that all his loan applications
were denied, stating “the original appeal was done.” Id. According to the
plaintiff, he did not understand what Hartman told him and he believes that he
could still file an appeal to the Wisconsin Supreme Court. Id. It appears that
Harman denied the plaintiff’s request for a loan because his original appeal had
concluded, but the plaintiff asserts that there are other ways to file cases in the
Wisconsin Supreme Court other than by direct appeal. Id. He says that he
wanted to file an “809.62 petition,” presumably referring to Wis. Stat. §809.62,
which allows a party to appeal an adverse decision of the court of appeals. Id.
Next, the plaintiff alleges that defendant Muenchow, who is the
institution complaint examiner, investigated the inmate complaint that the
plaintiff filed related to the denial of his legal loan applications. Id. at 6.
Muenchow allegedly found that inmate complaint WCI-2015-8421 should be
rejected and that the issue was moot because the plaintiff had received a
decision from the Wisconsin Supreme Court and that “we don’t allow
numerous appeals of appeals.” Id. The plaintiff states that Muenchow’s
determination was untrue, that he could appeal all the way to the United
States Supreme Court. Id. The plaintiff also mentions complaint WCI-20154

20189, and it appears that defendant Muenchow was the institution complaint
examiner for that inmate complaint. Id.
The plaintiff alleges that on April 12, 2016, he filed a request slip to
defendant Ms. Kamphuis, who is the “business supervisor,” and explained how
he had a right to file a petition for review to the Wisconsin Supreme Court. Id.
at 7. Based on exhibits the plaintiff attached to his complaint, defendant
Kamphuis responded and acknowledged that a mistake may have been made
in denying the original legal loan request. Dkt. No. 1-1 at 40. The plaintiff
alleges that it was not a mistake but that Kamphuis failed to follow DAI Policy
309.51.01 and that, as a result, the plaintiff lost his right to have the
Wisconsin Supreme Court review his appeal. Dkt. No. 1 at 7.
Next, the plaintiff alleges that defendant Brett Helmer, who is the
education director, knew or should have known about the plaintiff’s
limitations. Id. at 8-9. He says that these limitations impede his ability to get
meaningful and equal access to the courts. Id. at 11. The plaintiff refers to
correspondence he had with Helmer in 2017 which note the plaintiff’s
limitations or special needs, such as literacy. Id. at 8.
The plaintiff alleges that defendant Aimee Wilson has been the “ADA
Coordinator” at Waupun since November 2017. Id. at 10. On December 29,
2017, defendant Wilson allegedly denied the plaintiff’s “DOC 2530 Reasonable
Modification/Accommodation Request Under 42 U.S.C. § 1213,” because “no
documentation of a disability at health or psychological service.” Id.

5

Finally, the plaintiff names the Wisconsin Department of Corrections as a
defendant, as “defendants’ employer.” Id. at 11.
For relief, the plaintiff seeks damages for the violation of his right to
access the courts. Id. at 12.
C.

The Court’s Analysis

To state a valid access-to-the-courts claim, the plaintiff must minimally
allege both that prison officials failed to help him prepare and file meaningful
legal papers, and that he lost a valid legal claim or defense because of the
challenged conduct. See Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009);
Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). The complaint must
contain some information connecting the alleged denial of access to legal
materials and the unfavorable legal result of which the plaintiff complains.
Ortiz, 561 F.3d at 671; Tarpley v. Allen Cty., Ind., 312 F.3d 895, 899 (7th Cir.
2002).
The plaintiff has alleged sufficient facts to allow him to proceed on an
access-to-the-courts claim against defendant Hartman, based on his allegation
that Hartman suspended the plaintiff’s ability to obtain legal loans for thirty
days, preventing him from timely filing a petition to the Wisconsin Supreme
Court, and his allegation that Hartman subsequently denied the plaintiff’s
request for a legal loan.
The court will not allow the plaintiff to proceed against defendant
Muenchow, because he alleges only that Muenchow ruled on an administrative
grievance after the alleged violation took place. See Burks v. Raemisch, 555
6

F.3d 592, 595-96 (7th Cir. 2009) (prison officials who reject prisoners’
grievances do not become liable just because they fail to ensure adequate
remedies).
The court also will not allow the plaintiff to proceed against Kamphuis,
Helmer or Wilson, because he does not allege that they had any personal
involvement in the alleged violation. See Alejo v. Heller, 328 F.3d 930, 936 (7th
Cir. 2003) (commenting that §1983 defendant must have personally
participated in constitutional deprivation); Perkins v. Lawson, 312 F.3d 872,
875 (7th Cir. 2002) (noting no §1983 supervisor liability). While the plaintiff
alleges that these defendants knew about his situation, he does not allege that
they personally deprived him of access to the courts.
Finally, the plaintiff may not proceed against the Wisconsin Department
of Corrections because it is entitled to sovereign immunity and is immune from
suit. Mayhugh v. State, 364 Wis. 2d 208, 224 (2015).
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 Muenchow, Kamphuis, Helmer, Wilson
and the Wisconsin Department of Corrections.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS the clerk’s office to electronically
send copies of the plaintiff’s complaint and this order to the Wisconsin
Department of Justice for service on defendant Hartman.
7

Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS defendant Hartman to file a
responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $348.27 balance of the filing fee,
by collecting monthly payments from the account in an amount equal to 20%
of the preceding month's income credited to the 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. The court will send a copy of this order to Waupun
Correctional Institution, where the plaintiff is currently housed.
The court ORDERS that the parties shall 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. If the plaintiff is no longer
incarcerated at a Prisoner E-Filing institution, he must submit all
correspondence and legal material to:
8

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.
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
information not being timely delivered, thus affecting the legal rights of the
parties.
Dated at Milwaukee, Wisconsin this 27th day of August, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

9