Avery v. Godlewski et al

Filing 12

ORDER signed by Judge J P Stadtmueller on 5/8/2024. 11 Plaintiff's Motion for Filing Fees to be Deducted from Release Account is DENIED. CASE DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the failure to state a claim. Clerk of Court is DIRECTED to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). See Order. (cc: all counsel, via mail to Kelley Avery at Oshkosh Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KELLEY AVERY,

v.

Plaintiff,

WARDEN CHERYL EPLETT,
SHAWN TOOMBS, MATTHEW VAN
ESS, REBECCA SCHAFER, JOHN
DOES 1-2, and SARAH FELTES,

Case No. 23-CV-1271-JPS

ORDER

Defendants.

Plaintiff Kelley Avery, an inmate confined at Oshkosh Correctional
Institution (“OCI”), filed a pro se complaint under 42 U.S.C. § 1983 alleging
that his constitutional rights were violated. ECF No. 1. On January 9, 2024,
the Court screened Plaintiff’s complaint, found that it failed to state a claim,
and allowed him the opportunity to file an amended complaint. ECF No. 7.
On February 23, 2024, Plaintiff filed an amended complaint. ECF No. 10.
This Order resolves Plaintiff’s motion for filing fees to be deducted from
inmate’s release account, ECF No. 11, and screens his amended complaint.
1.

MOTION FOR FILING FEES TO BE DEDUCTED FROM
INMATE’S RELEASE ACCOUNT
The Court will deny Plaintiff’s motion for filing fees to be deducted

from inmate’s release account. This Court has the authority to order
disbursements from a prisoner’s release account for payment of an initial
partial filing fee (“IPFF”). See, e.g., Doty v. Doyle, 182 F. Supp. 2d 750, 751
(E.D. Wis. 2002) (noting that “both the Wisconsin Prison Litigation Reform
Act…and the federal Prison Litigation Reform Act [(“PLRA”)]…authorize

the courts to order that…a prisoner’s release account be made available [to
pay an IPFF]”). However, this Court lacks the authority—statutory or
otherwise—to order that a prisoner may tap into his release account to pay
current (or future) litigation costs. Cf. Wilson v. Anderson, No. 14-CV-0798,
2014 WL 3671878, at *3 (E.D. Wis. July 23, 2014) (declining to order that a
prisoner’s full filing fee be paid from his release account, “[g]iven the
[DOC’s] rationale for segregating funds into a release account” and the
absence of any statutory authority compelling the court to do so).
Permitting a prisoner to invade a release account for litigation costs
could harm that prisoner’s likelihood of success post-incarceration, see Wis.
Admin. Code § DOC 309.466 (stating that disbursements from a prisoner’s
release account are authorized “for purposes that will aid the inmate’s
reintegration into the community”), especially if the prisoner is particularly
litigious. As the Seventh Circuit has instructed, “like any other civil litigant,
[a prisoner] must decide which of [her] legal actions is important enough to
fund,” Lindell v. McCallum, 352 F.3d 1107, 1111 (7th Cir. 2003); thus, if a
prisoner concludes that “the limitations on his funds prevent him from
prosecuting [a] case with the full vigor he wishes to prosecute it, he is free
to choose to dismiss it voluntarily and bring it at a later date.” Williams v.
Berge, No. 02-CV-10, 2002 WL 32350026, at *8 (W.D. Wis. Apr. 30, 2002). As
such, the Court is obliged to deny Plaintiff’s motion for filing fees to be
deducted from his release account.
2.

SCREENING THE AMENDED COMPLAINT
2.1

Federal Screening Standard

Under the Prison Litigation Reform Act, the Court must screen
complaints brought by prisoners seeking relief from a governmental entity
or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
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The Court must dismiss a complaint if the prisoner 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).
In determining whether a complaint states a claim, the Court applies
the same standard that applies to dismissals under Federal Rule of Civil
Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing
Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir.
2012)). A complaint must include “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must contain enough facts, accepted as true, to “state a claim for
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. 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 for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
the laws of the United States and that whoever deprived him of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).

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2.2

Plaintiff’s Allegations

Plaintiff arrived at OCI on January 11, 2023, and became familiar
with the institution’s library policy and procedure. ECF No. 10 at 2. Plaintiff
is allowed to purchase a 4GB memory stick from OCI’s property
department. Id. At all relevant times to this complaint, Plaintiff had an
authorized flash drive maintained in a secure drawer at OCI’s library. Id.
On February 20, 2023, at approximately 8:45 p.m., Plaintiff and his
roommate were ordered out of their cell and escorted to the day room. Id.
at 3. Defendant John Doe #1 and John Doe #2 led Plaintiff to the rear of QBuilding living center near the back exit door. Id. Doe #1 ordered Plaintiff
to step inside a staff restroom and told to disrobe so that an officer could
conduct a visual inspection of Plaintiff’s naked body. Id. No contraband was
discovered on Plaintiff or in his cell. Id. Doe #1 escorted Plaintiff to the Unit
Manager’s Office and he was seated before Defendant Capt. Toombs
(“Toombs). Id. Toombs told Plaintiff he was searched because one of the
librarians told security that Plaintiff had possession of an unauthorized
flash drive. Id. at 4. Plaintiff believes that the search (in an area that was
accessible to all staff at any time, including female and transgender staff)
exposed Plaintiff to unnecessary shame, humiliation, degradation, and
danger. Id. On March 16, 2023, Plaintiff wrote to Security Director Emil
Toney seeking clarification about the policy. Id.
Plaintiff filed an inmate complaint regarding the incident, and it was
denied “all the way to Madison.” Id. Plaintiff sought judicial review of the
conflicting policies and the unfounded strip search. Id. OCI library rules
dictate that there is a difference between statute-driven deadlines and
court-ordered deadlines. Id. Filing a writ of certiorari for an inmate

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complaint is a statute-driven deadline and therefor Plaintiff would not
qualify for extra law library time. Id.
Because Plaintiff had received a major conduct report with minor
disposition penalties, Plaintiff was unable to attend regular library sessions.
Id. at 5. Plaintiff attempted to get special permission from Defendant Sarah
Feltes (“Feltes”), the library supervisor, to use the library. Id. Feltes
responded that he would need to get permission from his living center’s
manager. Id. At the time, Plaintiff’s manager was Ms. Buelen. Id. After
speaking with Buelen about his request, Buelen denied Plaintiff’s request
for library time without penological reason. Id. Plaintiff had only forty-five
days to file his writ for judicial review of the Secretary’s decision regarding
the strip search policy. Id.
On March 25, 2023, Plaintiff wrote a letter to the Winnebego County
Clerk of Court expressing concerns about his deadline and asked for a
thirty-day extension. Id. On May 31, 2023, the Clerk responded that the
court did not have forms or instruction available for Plaintiff’s request. Id.
On June 19, 2023, a circuit court judge denied his writ for failure to properly
complete an affidavit of indigency. Id. Plaintiff filed a motion for
reconsideration, but it was denied. Id. Plaintiff believes his denial of access
to the law library and law library materials caused him to lose an otherwise
arguably meritorious claim. Id.
2.3

Analysis

The Court finds that Plaintiff’s amended complaint as alleged fails
to state a claim for an unconstitutional strip search. The Eighth Amendment
safeguards prisoners against searches that correctional officers subjectively
intend as a form of punishment. Henry v. Hulett, 969 F.3d 769, 781 (7th Cir.
2020). A strip search of a prisoner violates the Eighth Amendment if its
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purpose is “maliciously motivated, unrelated to institutional security, and
hence totally without penological justification.” Chatman v. Gossett, 766 F.
App’x 362, 364 (7th Cir. 2019) (quoting Whitman v. Nesic, 368 F.3d 931, 934
(7th Cir. 2004)). A strip search is penologically justified when it is
reasonably related to finding contraband that threatens the safety and
security of the prison. Id. (citing Peckham v. Wis. Dep't of Corr., 141 F.3d 694,
695, 697 (7th Cir. 1998)); Del Raine v. Williford, 32 F.3d 1024, 1029, 1041 (7th
Cir. 1994)).
The Eighth Amendment focuses on the defendants’ subjective state
of mind. Henry, 969 F.3d at 781. But the Fourth Amendment focuses on
objective reasonableness, and thus “a defendant's subjective state of mind
is irrelevant to a court's Fourth Amendment analysis.” Id. “The Fourth
Amendment thus protects prisoners from searches that may be related to
or serve some institutional objective, but where guards nevertheless
perform the searches in an unreasonable manner, in an unreasonable place,
or for an unreasonable purpose.” Id. When evaluating a prisoner’s claim
involving a strip search under the Fourth Amendment, a court “must assess
that search for its reasonableness, considering ‘the scope of the particular
intrusion, the manner in which it is conducted, the justification for initiating
it, and the place in which it is conducted.
Applying that standard here, Plaintiff’s amended complaint does not
contain sufficient factual allegations to suggest an unconstitutional search
occurred. Plaintiff’s allegations suggest that the search occurred as a result
of a librarian believing Plaintiff possessed contraband. There are no facts to
suggest that the search was maliciously motivated or unrelated to
institutional security, in violation of the Eighth Amendment. Similarly, as
currently pled, Plaintiff’s allegations do not suggest that the Does
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conducted the search in an unreasonable manner or location, or for an
unreasonable purpose, in violation of the Fourth Amendment. Finally,
while Plaintiff alleges that the search occurred in a place where other
women and/or transgender staff could have witnessed the search, he does
not suggest that anyone actually did witness the search. As such, the Court
does not find that Plaintiff states a claim for an unconstitutional search.
Second, Plaintiff may not proceed on claims against Defendant
Eplett. For a prison official to be personally liable, he or she must have
participated in some way with the alleged constitutional violation. Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a cause of action
based on personal liability and predicated upon fault; thus, liability does
not attach unless the individual defendant caused or participated in a
constitutional deprivation.”) (internal quotation marks and citation
omitted); see also Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003).
Generally, the denial of a grievance “by persons who otherwise did not
cause or participate in the underlying conduct states no claim.” Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011); see also George v. Smith, 507 F.3d
605, 609 (7th Cir. 2007). “If there is ‘no personal involvement by the warden
[in an inmate's medical care] outside the grievance process,’ that is
insufficient to state a claim against the warden.” Neely v. Randle, No. 12 C
2231, 2013 WL 3321451, at *3 (N.D. Ill. June 13, 2013) (quoting Gevas v.
Mitchell, 492 Fed. Appx. 654, 660 (7th Cir. 2012)). As such, the Court finds
that Plaintiff fails to state a claim regarding the denial of his inmate
complaints.
Finally, the Court finds that Plaintiff may not proceed on an access
to courts claim. Plaintiff alleges that Defendants’ denial of law library time
prevented him access to the court. The Constitution guarantees prisoners a
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right of access to the courts. Lewis v. Casey, 518 U.S. 343, 350–51 (1996). But
because that right is to access the courts rather than legal materials or law
libraries, an inmate will not have a valid claim unless the prison authorities’
conduct prejudiced a potentially meritorious challenge to his conviction,
sentence, or conditions of confinement. Ortiz v. Downey, 561 F.3d 664, 671
(7th Cir. 2009); Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009); Marshall
v. Knight, 445 F.3d 965, 968 (7th Cir. 2006).
The point of recognizing an access to the courts claim “is to provide
some effective vindication for a separate and distinct right to seek judicial
relief for some wrong.” Christopher v. Harbury, 536 U.S. 403, 414–15 (2002).
The constitutional right of access to court “is ancillary to the underlying
claim, without which a plaintiff cannot have suffered injury by being shut
out of court.” Id. at 415; see also Lewis, 518 U.S. at 353 (plaintiff must identify
a “nonfrivolous,” “arguable” underlying claim). Accordingly, “the
underlying cause of action, whether anticipated or lost, is an element that
must be described in the complaint, just as much as allegations must
describe the official acts frustrating the litigation.” Harbury, 536 U.S. at 415.
Here, Plaintiff’s amended complaint does not meet the basic
requirements for an access to courts claim. Although Plaintiff generally
references that he was denied his writ, the amended complaint does not
provide any information about how Defendants’ actions actually
prejudiced a potentially meritorious claim. Plaintiff alleges that the writ
was denied for failure to properly complete an affidavit of indigency, and
it is unclear to the Court why access to the library would be necessary for
such a task. As such, the Court finds that Plaintiff may not proceed on an
access to courts claim.

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3.

CONCLUSION
In sum, the Court finds that the amended complaint fails to state a

claim upon which relief may be granted. Plaintiff was already provided the
opportunity to amend his complaint based on the Court’s guidance in the
initial screening order, and he failed to amend his factual allegations in any
meaningful way. The Court therefore finds that further amendment would
be futile. See Runnion ex rel. Runnion v Girl Scouts of Greater Chi. & Nw. Ind.,
786 F.3d 510, 519–20 (7th Cir. 2015). As such, the Court is obliged to dismiss
this action for the failure to state a claim and will accordingly assess a
“strike” under 28 U.S.C. § 1915(g).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for filing fees to be deducted
from inmate’s release account, ECF No. 11, be and the same is hereby
DENIED;
IT IS ORDERED that this case be and the same is hereby
DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for the
failure to state a claim; and
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g).
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 8th day of May, 2024.
BY THE COURT:

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

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This Order and the judgment to follow are final. A dissatisfied party may
appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty (30) days of
the entry of judgment. See Fed. R. of App. P. 3, 4. This Court may extend
this deadline if a party timely requests an extension and shows good
cause or excusable neglect for not being able to meet the thirty-day
deadline. See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be
liable for the $505.00 appellate filing fee regardless of the appeal’s
outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court.
See Fed. R. App. P. 24(a)(1). Plaintiff may be assessed another “strike” by
the Court of Appeals if his appeal is found to be non-meritorious. See 28
U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able
to file an action in federal court (except as a petition for habeas corpus
relief) without prepaying the filing fee unless he demonstrates that he is
in imminent danger of serous physical injury. Id.
Under limited circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask
for relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within
twenty-eight (28) days of the entry of judgment. The Court cannot extend
this deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule
of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of the judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine,
what, if any, further action is appropriate in a case.

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