Newell, Donald v. State of Wisconsin et al

Filing 3

ORDER Dismissing 1 Complaint. ( Amendments to Pleadings due 8/8/2017. ) Signed by District Judge Barbara B. Crabb on 7/14/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - DONALD A. NEWELL, JR.,
OPINION AND ORDER
Plaintiff,
17-cv-436-bbc
v.
STATE OF WISCONSIN, CHIPPEWA COUNTY
and WISCONSIN DEPARTMENT OF CORRECTIONS,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Pro se plaintiff Donald Newell is incarcerated at the New Lisbon Correctional
Institution, which is in New Lisbon, Wisconsin. He has filed a complaint and paid the filing
fee in full, so his claims are ready for screening by the court under 28 U.S.C. § 1915A.
Because plaintiff has not identified a proper defendant and the complaint does not provide
fair notice of his claims, I am dismissing the complaint without prejudice to plaintiff’s filing
an amended complaint that corrects the defects discussed below.
The body of plaintiff’s complaint is a single page and most of that is devoted to case
law citations. The remainder is a request for relief. He asks the court to enjoin defendants
from “interfer[ing]” with his “usage” of his “Veteran’s Disability Pension” and to require
them to return any money they have already taken. The complaint includes no factual
allegations.
Plaintiff’s complaint has multiple problems. First, under Rule 8 of the Federal Rules

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of Civil Procedure, plaintiff is required to provide fair notice of his claims to each defendant
and set out claims that are plausible on their face. Appert v. Morgan Stanley Dean Witter,
Inc., 673 F.3d 609, 622 (7th Cir. 2012); Bausch v. Stryker Corp., 630 F.3d 546, 559 (7th
Cir. 2010). A plaintiff cannot provide fair notice when his complaint includes no factual
allegations.
Plaintiff’s request to enjoin defendants from interfering with his “usage” of the
pension suggests that plaintiff’s account may have been frozen or that restrictions were
placed on it. However, his request for “the return of all amounts taken from him” suggests
that money is being deducted from his account for an unspecified purpose.
Regardless whether plaintiff’s money is being restricted or confiscated, a
determination whether that conduct violates his rights would depend upon the
circumstances. Plaintiff seems to believe that there is an absolute prohibition against any
restriction on his use of his pension, but I am not aware of any law that would support that
view and the cases plaintiff cites are not instructive. Each of them is a criminal case from
the 1800s about individuals prosecuted for offenses relating to withholding pensions
wrongfully, but none of them discuss a pensioner’s rights under civil law and none of them
state that pensions are immune from otherwise valid restrictions. E.g., Ballew v. United
States, 160 U.S. 187 (1895); United States v. Irvine, 98 U.S. 450 (1878).
Although plaintiff does not identify a cause of action or legal theory in his complaint,
the most plausible are under the takings clause of the Fifth Amendment and the due process
clause of the Fourteenth Amendment. Neither of these clauses creates a blanket right against

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government interference with property.
The takings clause prohibits the government from a taking a person’s property
without just compensation. Barbian v. Panagis, 694 F.2d 476, 482 & n. 4 (7th Cir.1982).
However, if officials are deducting money from plaintiff’s account for a reasonable fee or to
pay his restitution or other debts, that would not necessarily violate the takings clause.
Edmonson v. Fremgen, 590 F. Appx 613, 615 (7th Cir. 2014); Meineke v. Finnan, No.
1:11-cv-01624-twp, 2014 WL 3586546, at *3 (S.D. Ind. July 21, 2014).
The due process clause prohibits the government from taking a person’s property
without notice and an opportunity to be heard. Mann v. Calumet City, Illinois, 588 F.3d
949, 954 (7th Cir. 2009). It is reasonable to infer at the pleading stage that plaintiff has a
property interest in his pension, both before and after it is deposited in his prison account.
Campbell v. Miller, 787 F.2d 217, 222 (7th Cir.1986). However, plaintiff does not say
whether he has been denied notice or an opportunity to be heard. If money is being taken
from plaintiff’s account as part of an established state procedure, that would not necessarily
violate the due process clause. E.g., Mahers v. Halford, 76 F.3d 951, 956 (8th Cir. 1996)
(rule requiring that 20 percent of prisoner’s deposits be used for restitution obligations did
not violate due process clause); Wolfe v. Litscher, No. 03-C-302-C, 2003 WL 23221146,
at *3 (W.D. Wis. July 7, 2003) (“[S]tate corrections officials can freeze or debit an inmate's
account to enforce restitution orders issued by prison disciplinary bodies, provided that the
disciplinary proceedings conform to the minimum requirements of procedural due process.”);
Richards v. Cullen, 150 Wis. 2d 935, 941, 442 N.W.2d 574, 576–77 (Ct. App. 1989) (rule

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requiring prisoners to save percentage of deposits for release did not violate due process).
Further, if individual officials are taking money from plaintiff in violation of state policy,
that would not violate the due process clause because plaintiff would have adequate remedies
under state law. West v. Berge, No. 05-C-37-C, 2005 WL 503819, at *4 (W.D. Wis. Feb.
28, 2005) (dismissing claim for unauthorized deduction from prisoner’s account because
prisoner had adequate remedies under chapters 810 and 893 of the Wisconsin Statutes,
which provide individuals with causes of action for replevin and various torts).
In short, plaintiff cannot state a claim under the takings clause or the due process
clause without describing the actions that officials are taking, the procedures used in taking
those actions and the reasons for the officials’ conduct. I will give plaintiff an opportunity
to file an amended complaint that provides that information. Further, if plaintiff wishes to
raise a claim under the due process clause, he should identify the process he believes he is
due but has not received. If plaintiff believes that there is a federal statute that gives him
greater rights than the Constitution and creates a civil cause of action allowing him to file
a lawsuit, he should identify that statute in his amended complaint.
A second problem with plaintiff’s complaint is that he has not identified a party that
he can sue. Neither the state of Wisconsin nor the Wisconsin Department of Corrections
can be sued for constitutional violations. Thomas v. Illinois, 697 F.3d 612, 613-14 (7th
Cir. 2012). Rather, plaintiff must sue the individual officials who are responsible for the
unlawful conduct.
A municipal government such as Chippewa County can be sued for violating the

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Constitution, but only if the county has a policy that caused the violation. Monell v. Dept.
of Social Services of the City of New York, 436 U.S. 658 (1978). In this case, plaintiff not
only failed to identify a county policy, but he also failed to explain how the county or any
other entity or person is involved in decisions regarding his pension. If plaintiff chooses to
file an amended complaint, he must include information explaining how each defendant is
involved in allegedly violating his rights.

ORDER
IT IS ORDERED that plaintiff Donald Newell’s complaint is DISMISSED
WITHOUT PREJUDICE for his failure to provide fair notice of his claims. Plaintiff may
have until August 8, 2017, to file an amended complaint that corrects the problems
discussed in this order. If plaintiff does not respond by August 8, 2017, I will dismiss the
complaint with prejudice, direct the clerk of court to enter judgment and record a “strike”
against plaintiff under 28 U.S.C. § 1915(g).
Entered this 14th day of July, 2017.
BY THE COURT:
/s/
__________________________________
BARBARA B. CRABB
District Judge

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