Smith, Derrick v. Dickman, Robert et al, No. 3:2012cv00742 - Document 32 (W.D. Wis. 2013)
Court Description: ORDER denying plaintiff's request for leave to proceed and dismissing his 1 complaint with prejudice for failure to state a claim upon which relief may be granted. This dismissal will count as a STRIKE for purposes of 28 U.S.C. § 1915(g). Signed by District Judge William M. Conley on 11/22/2013. (jef),(ps)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN DERRICK L. SMITH, Plaintiff, OPINION AND ORDER v. 12-cv-742-wmc ROBERT DICKMAN, et al., Defendants. State inmate Derrick L. Smith has filed this civil action pursuant to 42 U.S.C. § 1983, concerning the conditions of his confinement at the Marathon County Jail. He has been granted leave to proceed in forma pauperis in this case and he has paid an initial, partial filing fee as required by the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(b)(1). Because he is incarcerated, the PLRA also requires the court 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. § 1915A. In addressing any pro se litigant s complaint, the court must read the allegations generously, reviewing them under “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 521 (1972). Even under this very lenient standard, Smith s request for leave to proceed must be denied and this case will be dismissed for reasons set forth below. FACTS For purposes of this order, the court accepts all well-pled allegations as true and assumes the following probative facts.1 The plaintiff, Derrick L. Smith, has a lengthy criminal record of convictions from Marathon County, Wisconsin, dating back to at least 1996. Smith turned himself in to the Marathon County Jail on June 5, 2012, after he was charged with several felony offenses in Marathon County Case No. 2012CF386.2 Smith was also charged with violating the terms of his supervised release from a previous sentence of imprisonment. Following the revocation of his parole and return to state prison in October 2012, Smith was transferred from the Marathon County Jail to the Dodge Correctional Institution (“DCI”) of the Wisconsin Department of Corrections (“WDOC”). In February 2013, Smith was assigned to the Columbia Correctional Institution (“CCI”). On August 6, 2013, Smith was released from state prison on extended supervision. Because a detainer was pending against him from Marathon County, Smith returned to custody at the Marathon County Jail, where he is currently awaiting trial in Case No. 2012CF386. In this case, Smith has filed suit under 42 U.S.C. § 1983 against the following individuals employed at the Marathon County Jail: Administrator Bob Dickman; Supervisor 1 The court has supplemented the sparse allegations in the complaint with dates and procedural information about plaintiff s underlying criminal case from the electronic docket available at Wisconsin Circuit Court Access, http://wcca.wicourts.gov (last visited November 15, 2013). The court draws all other facts from the complaint in this case and several others filed recently by Smith, as well as any exhibits attached to his pleadings. See FED. R. CIV. P. 10(c); see also Witzke v. Femal, 376 F.3d 744, 749 (7th Cir. 2004) (explaining that documents attached to the complaint become part of the pleading, meaning that a court may consider those documents to determine whether plaintiff has stated a valid claim). 2 Smith has been charged in that case with first-degree sexual assault with a dangerous weapon; substantial battery intending bodily harm; strangulation and suffocation (two counts); false imprisonment; and victim intimidation by use or attempted use of force. See State v. Derrick L. Smith, Marathon County Case No. 2012CF386. Pellowski; Supervisor Schaffer; Officer William Beaudry; Officer Tully; and other unidentified guards and supervisors. Smith contends that his access to courts has been frustrated because: (1) the law library at the Jail is outdated; (2) inmates are not allowed to use a typewriter or computer to draft and print petitions or motions; (3) because inmates must choose between attending gym or the law library, he was only able to use the law library ten times between June and October 2012; and (4) he was unable to use the law library at all while he was in disciplinary segregation, which caused him to be “grossly unprepared” for a probation-revocation proceeding. OPINION A complaint may be dismissed for failure to state a claim where the plaintiff alleges too little, failing to meet the minimal federal pleading requirements found in Rule 8 of the Federal Rules of Civil Procedure. Rule 8(a) requires a “„short and plain statement of the claim sufficient to notify the defendants of the allegations against them and enable them to file an answer.” Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006). While it is not necessary for a plaintiff to plead specific facts, he must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). This requirement is not satisfied by “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[.]” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2007) (citing Twombly, 550 U.S. at 555) (observing that courts “are not bound to accept as true a legal conclusion couched as a factual allegation”). To state a valid claim under 42 U.S.C. § 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 (2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)). To demonstrate liability under § 1983, a plaintiff must allege sufficient facts showing that an individual personally caused or participated in the alleged constitutional deprivation. See Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000); Walker v. Taylorville Correctional Ctr., 129 F.3d 410, 413 (7th Cir. 1997) (noting that “personal involvement” is required to support a claim under ' 1983). Dismissal is proper “if the complaint fails to set forth „enough facts to state a claim to relief that is plausible on its face. ” St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Liberally construed, Smith contends that the inadequate law library and lack of supplies at the Marathon County Jail were such that he was denied the right to access to courts when his supervised release was revoked in October 2012. Prisoners have a constitutional right to access the courts. See Christopher v. Harbury, 536 U.S. 403 (2002); Lewis v. Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430 U.S. 817 (1977). However, a prisoner has no “freestanding right to a law library or legal assistance” while in custody. Lewis, 518 U.S. at 351. Thus, it is not enough to allege that a prisoner s access to courts was impeded by the lack of legal supplies or an inadequate law library. “[T]o satisfactorily state a claim for an infringement of the right of access, prisoners must also allege an actual injury.” In re Maxy, 675 F.3d 658 660-61 (7th Cir. 2012) (per curiam) (citing Casey, 518 U.S. at 353; Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir. 2009) (“That right [to access courts] is violated when a prisoner is deprived of such access and suffers actual injury as a result.”). This means that a prisoner “must allege that some action by the prison has frustrated or is impeding an attempt to bring a nonfrivolous legal claim.” Maxy, 675 F.3d at 661 (citing Harbury, 536 U.S. at 415 (“[E]ven in forward-looking prisoner 4 class actions to remove roadblocks to future litigation, the named plaintiff must identify a „nonfrivolous, „arguable underlying claim.”); Marshall v. Knight, 445 F.3d 965, 968 (7th Cir. 2006) (“[T]he mere denial of access to a prison library or to other legal materials is not itself a violation of a prisoner's rights; his right is to access the courts, and only if the defendants' conduct prejudices a potentially meritorious challenge to the prisoner s conviction [or] sentence . . . has this right been denied.”)) (citation omitted). In other words, a prisoner must identify the underlying claim that was lost. See Christopher v. Harbury, 536 U.S. 403, 416 (2002); Steidl v. Fermon, 494 F.3d 623, 633 (7th Cir. 2007). Smith does not allege facts showing that he was unable to assert any particular claim or defense in connection with the revocation of his supervised release. Likewise, Smith cannot dispute that he had the assistance of appointed counsel during his revocation proceeding. See Smith v. Dickman et al., Case No. 12-cv-743 (W.D. Wis.) (asserting that the attorney who represented him during his parole revocation proceeding was ineffective, but alleging no prejudice as a result of counsel s efforts). Smith does not establish that he was denied counsel, as such, and he does not otherwise demonstrate that his access to courts was infringed upon in any event. Assuming that all of his allegations are true, Smith fails to state a claim upon which relief can be granted. Because it does not appear that Smith can state a claim for the denial of access to courts where his revocation proceeding is concerned, any proposed amendment is unlikely to cure the defect concerning the allegations raised in this case. Accordingly, this complaint will be dismissed with prejudice. 5 ORDER IT IS ORDERED that: 1. Plaintiff Derrick L. Smith s request for leave to proceed is DENIED and his complaint is DISMISSED with prejudice for failure to state a claim upon which relief may be granted. 2. This dismissal will count as a STRIKE for purposes of 28 U.S.C. § 1915(g). Entered this 22nd day of November, 2013. BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge 6
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