Kirksey v. Kenosha County Detention Center et al

Filing 8

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 8/9/2019. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and 7 Plaintiff's Motion to Waive Initial Partial Filing F ee are GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee in accordance with this Order. Plaintiff is PERMITTED to proceed on Thirteenth Amendment claim for involuntary servitude and Fourteenth Amendment claim of pun ishment without due process of law. U.S. Marshals Service to SERVE a copy of the Complaint and this Order on Defendants, who shall FILE a responsive pleading. See Order. (cc: all counsel, via mail to Terrance Lavell Kirksey and Sheriff at Kenosha County Jail) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE LAVELL KIRKSEY,
Plaintiff,
v.
KENOSHA COUNTY DETENTION
CENTER, DAVID BETH,
LIEUTENANT BILL BETH, A. DEAN,
G. KONKEN, J. OENNING, and M.
SCHULTZ,

Case No. 19-CV-602-JPS

ORDER

Defendants.
On April 25, 2019, Plaintiff, a prisoner proceeding pro se, filed a
complaint and a motion for leave to proceed without prepayment of the
filing fee. (Docket #1, #2). In an order dated June 18, 2019, the Court directed
Plaintiff to pay an initial partial filing fee (“IPFF”) of $21.40, based on the
three months of prisoner trust account statements that immediately
preceded the filing of the complaint. (Docket #6). On July 2, 2019, Plaintiff
filed a motion to waive the IPFF, attaching additional prisoner trust account
statements for the months of May and June, which reflect much lower
balances. (Docket #7). Effectively, Plaintiff had one large deposit when he
first entered prison, which comprised all of his finances. Id. He has had a
zero-balance for the last four months. The Court will therefore waive the
initial partial filing fee, with the caveat that if and when Plaintiff begins
receiving money, he will be charged in accordance with the terms of 28
U.S.C. § 1915(b)(2) (explained below).
With that issue disposed of, the Court will proceed to screen
Plaintiff’s complaint. The Court shall 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). It is not
necessary for the plaintiff to 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, accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility
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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
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. Section 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)).
Plaintiff is a pre-trial detainee at the Kenosha County Detention
Center (“KCDC”) in Kenosha, Wisconsin. (Docket #1 at 2). He claims that
on January 16, 2019, he was “forced to work without consent and
compensation [even though he was] not sentenced to a crime.” Id. When he
protested, he was taken to disciplinary segregation, where he was confined
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for three days. He claims that after this, he was forced to clean on several
other occasions without his consent or compensation, under threat of
disciplinary segregation. This caused him severe mental disturbances and
led him to self-harm. He does not allege that any of the named defendants
ignored his self-harm efforts.
The Thirteenth Amendment prohibits slavery and involuntary
servitude “except as a punishment for crime whereof the party shall have
been duly convicted.” U.S. Const. amend. XIII, § 1. Involuntary servitude is
defined as “a condition of servitude in which the victim is forced to
work. . .by the use or threat of physical restraint or physical injury, or by
the use or threat of coercion through law or the legal process.” United States
v. Kozminski, 487 U.S. 931, 952 (1988). Under the Thirteenth Amendment,
pre-trial detainees cannot be subject to involuntary servitude. McGarry v.
Pallito, 687 F.3d 505, 511–12 (2d Cir. 2012) (finding that a plaintiff stated a
claim under the Thirteenth Amendment when he alleged that jail officials
threatened him with solitary confinement if he did not work in the prison
laundry); but see Bijeol v. Nelson, 579 F.2d 423, 424 (7th Cir. 1978) (holding
that “[d]aily general housekeeping responsibilities are not punitive in
nature and for health and safety must be routinely observed[.]”).
Plaintiff alleges that, prior to any adjudication of guilt, he was forced
to work against his will on several occasions for no compensation, under
threat of disciplinary segregation if he did not cooperate. Plaintiff does not
say what he was forced to clean, but the Court, at this stage, is obliged to
liberally construe the pleadings. Therefore, Plaintiff may proceed on his
claim of involuntary servitude in violation of the Thirteenth Amendment.
Relatedly, “under the Due Process Clause [of the Fourteenth
Amendment], a detainee may not be punished prior to an adjudication of
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guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520,
535

(1979).

While

the

government

may

detain

the

inmate

“to ensure his presence at trial,” the government must also ensure that the
detention facility’s “conditions and restrictions do not amount to
punishment[.]” Id. at 536–37. Accordingly, “[t]he state cannot place a
detainee in segregation for no reason[.]” Zarnes v. Rhodes, 64 F.3d 285, 291
(7th Cir. 1995) (citing Hawkins v. Poole, 779 F.2d 1267, 1269 (7th Cir. 1985)).
Plaintiff alleges that when he refused to clean, he was summarily
punished in disciplinary segregation for three days for no other reason than
that he attempted to assert his Thirteenth Amendment right. Generously
construed, Plaintiff has also stated a claim for a violation of his Fourteenth
Amendment right to be free from punishment without due process of law.
Plaintiff may therefore proceed on two claims: (1) a Thirteenth
Amendment claim for involuntary servitude; and (2) a Fourteenth
Amendment claim that he was punished without due process of law.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to waive the
initial partial filing fee (Docket #7) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the complaint and this order upon Defendants pursuant to
Federal Rule of Civil Procedure 4. Plaintiff is advised that Congress requires
the U.S. Marshals Service to charge for making or attempting such service.
28 U.S.C. § 1921(a). 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),
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(a)(3). Although Congress requires the court to order service by the U.S.
Marshals Service precisely because in forma pauperis plaintiffs are indigent,
it has not made any provision for these fees to be waived either by the court
or by the U.S. Marshals Service;
IT IS FURTHER ORDERED that Defendants shall file a responsive
pleading to the complaint;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $350.00 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 payments shall be clearly identified by the
case name and number assigned to this action. If Plaintiff is transferred to
another institution, county, state, or federal, 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; and
IT IS FURTHER ORDERED that Plaintiff shall 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
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Plaintiff is further advised that failure to make a timely submission
may result in the dismissal of this action for failure to prosecute. In addition,
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 9th day of August, 2019.
BY THE COURT:

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

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