Svoke, Jack v. Opperman, W

Filing 8

ORDER that Plaintiff Jack Albert Svoke's complaint, Dkt. 1 , is DISMISSED. Plaintiff may have until August 5, 2021, to submit an amended complaint. Signed by District Judge James D. Peterson on 7/15/2021. (kmd),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JACK ALBERT SVOKE,
Plaintiff,
v.
SERGEANT W. OPPERMAN,

OPINION and ORDER
20-cv-1000-jdp

Defendant.
Pro se plaintiff Jack Albert Svoke is an inmate at Jackson Correctional Institution. He
alleges that defendant W. Opperman, a sergeant at Dodge Correctional Institution (DCI),
tampered with his legal mail, causing a delay in his medical treatment. Svoke seeks leave to
proceed in forma pauperis with his case, and he has made an initial partial payment of the
filing fee as previously directed by the court.
The next step is for me to screen the complaint and dismiss any portion that is legally
frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money
damages from a defendant who by law cannot be sued for money damages. 28 U.S.C. §§ 1915
& 1915A. In doing so, I must accept his allegations as true, see Bonte v. U.S Bank, N.A., 624
F.3d 461, 463 (7th Cir. 2010), and construe the complaint generously, holding it to a less
stringent standard than formal pleadings drafted by lawyers. Arnett v. Webster, 658 F.3d 742,
751 (7th Cir. 2011).
I will deny Svoke leave to proceed on an access-to-the-courts claim based on
Opperman’s tampering with his mail. Svoke may be able to state an Eighth Amendment claim
on grounds that Opperman interfered with his legal mail in a way that prevented him from

receiving proper medical care. I will dismiss Svoke’s complaint and give him a chance to submit
an amended complaint that provides more detailed allegations about his medical care claim.

FACTUAL ALLEGATIONS
I draw the following allegations from Svoke’s complaint. Dkt. 1. On August 17, 2020,
Svoke received mail from the office of the Wisconsin governor. The mail contained grievance
forms related to Svoke’s medical care at DCI. Defendant W. Opperman, a sergeant, opened
the mail in DCI’s mailroom and took the contents. Svoke filed a formal complaint about the
interference with his mail. The institutional complaint examiner affirmed the complaint after
determining that Svoke’s mail had been opened and read. Svoke says that the mail that
Opperman confiscated contained “forms [that] were to report to a higher authority that could
have prevented and helped with [Svoke’s] neglected medical situation.” Dkt. 1, at 4.

ANALYSIS
Svoke alleges that Opperman tampered with his legal mail and that Opperman’s actions
interfered with Svoke’s medical care, so I will consider Svoke’s allegations under access-to-thecourts principles and under the Eighth Amendment.
A. Access-to-the-courts claim
Generally, as part of a prisoner’s right of access to the courts, prison staff may not open
correspondence from a prisoner’s lawyer out of the prisoner’s presence. Guajardo-Palma v.
Martinson, 622 F.3d 801, 804 (7th Cir. 2010). But opening mail violates this right only if the
mail is a privileged communication between the prisoner and an attorney, Kaufman v.
McCaughtry, 419 F.3d 678, 686 (7th Cir. 2005), and the opening of the mail impeded the

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prisoner’s ability to pursue a nonfrivolous action in court. Guajardo-Palma, 622 F.3d at 804.
An isolated incident of prison staff opening legal mail is not likely to interfere with a prisoner’s
right of access to the court. Id.
Svoke alleges that Opperman opened a letter that he received from the Wisconsin
governor with grievance forms related to his medical care. The letter was not a privileged
communication between Svoke and his attorney, and Svoke does not allege that Opperman’s
review of the letter interfered with his ability to litigate a case or to access the courts. Svoke
says that he has reason to believe that his mail was tampered with on other occasions, but he
doesn’t allege specific details about those instances. Svoke has not stated an access-to-thecourts claim.
B. Eighth Amendment medical care claim
Svoke alleges that Opperman confiscated legal mail that could have helped Svoke
resolve a medical problem that DCI staff was not addressing. But Svoke’s complaint does not
comply with Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a complaint to
include “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Under Rule 8(d), “each allegation must be simple, concise, and direct.” The primary purpose
of these rules is fair notice. A complaint “must be presented with intelligibility sufficient for a
court or opposing party to understand whether a valid claim is alleged and if so what it is.”
Vicom, Inc. v. Harbridge Merchant Serv’s, Inc., 20 F.3d 771, 775 (7th Cir. 1994).
I will give Svoke a chance to file an amended complaint that more clearly explains how
Opperman’s actions interfered with his medical care. He should draft his amended complaint
as if he were telling a story to people who know nothing about his situation. As Svoke drafts
his amended complaint, he should be aware that to state an Eighth Amendment medical care

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claim, a prisoner must allege that the defendant was aware of a serious medical need and
consciously failed to take reasonable measures to help him. Duckworth v. Ahmad, 532 F.3d 675,
679 (7th Cir. 2008). Svoke should explain his medical condition, whether Opperman knew
about Svoke’s condition, and how Opperman’s mail tampering prevented Svoke from getting
medical help sooner.
If Svoke fails to respond to this order by the deadline below, I will dismiss the case for
his failure to state a claim upon which relief may be granted and I will assess him a “strike”
under 28 U.S.C. § 1915(g).

ORDER
IT IS ORDERED that:
1. Plaintiff Jack Albert Svoke’s complaint, Dkt. 1, is DISMISSED.
2. Plaintiff may have until August 5, 2021, to submit an amended complaint.
Entered July 15, 2021.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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