Green v. Noble
| Decision Date | 04 March 2022 |
| Docket Number | 21-cv-615-pp |
| Parties | THOMAS GREEN, and SHALEANA CISTRUNK, Plaintiffs, v. JON NOBLE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
THOMAS GREEN, and SHALEANA CISTRUNK, Plaintiffs,
v.
JON NOBLE, et al., Defendants.
No. 21-cv-615-pp
United States District Court, E.D. Wisconsin
March 4, 2022
ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 8) UNDER 28 U.S.C. §1915A, DENYING PLAINTIFF GREEN'S MOTION FOR A PRELIMINARY INJUNCTION (DKT. NO. 2) AND DISMISSING CASE
HON. PAMELA PEPPER Chief United States District Judge.
On May 17, 2021, plaintiff Thomas Green, an incarcerated person at Kettle Moraine Correctional Institution who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his First and Fourteenth Amendment rights by prohibiting his girlfriend from visiting him in prison. Green paid the full $402 civil filing fee with his complaint. Dkt. No. 1.
On November 29, 2021, the court received a letter from Green, in which he asked “to amend the complaint before screening since it hasn't been screened yet.” Dkt. No. 7. Green did not wait for the court's response; the court received an amended complaint two months later. Dkt. No. 8. The amended complaint added several defendants and a second plaintiff, Shaleana Cistrunk (Green's girlfriend). Because Cistrunk is not incarcerated and Green paid the full filing fee, Cistrunk does not need to pay an additional filing fee to join this lawsuit. See Hietpas v. Buhs, No. 17-CV-1455, 2017 WL 5905557, at *1 (E.D.
Wis. Nov. 30, 2017) (citing Boriboune v. Berge, 391 F.3d 852, 855 (7th Cir. 2004)).
Under Federal Rule of Civil Procedure 15, “[a] party may amend its pleading once as a matter of course within” twenty-one days of service or within twenty-one days after service of a responsive pleading. Fed.R.Civ.P. 15(a)(1). Because the plaintiffs filed the amended complaint within the period that Rule 15(a)(1) defines, and because the court has not yet screened the original complaint or ordered service on any defendant, the court will screen the amended complaint. Dkt. No. 8. The amended complaint supersedes the original complaint and now is the operative complaint. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) (citing Carver v. Condie, 169 F.3d 469, 472 (7th Cir. 1999)). That means the court will not consider allegations in the original complaint when screening the amended complaint. This decision also resolves plaintiff Green's motion for a preliminary injunction. Dkt. No. 2.
I. Screening the Complaint
A. Federal Screening Standard
The amended complaint contains claims filed by a prisoner (Green) and by a non-prisoner (Cistrunk). The court has “‘the power to screen complaints filed by all litigants, prisoners and non-prisoners alike, regardless of fee status.'” Richards v. HSBC Tech. & Servs. USA, Inc., 303 Fed.Appx. 356, 357 (7th Cir. 2008) (quoting Rowe v. Shake, 196 F.3d 778, 783 (7th Cir. 1999)).
The Prison Litigation Reform Act (PLRA) applies to Green's claims because he was a prisoner when he filed the amended complaint. See 28 U.S.C. §1915(h). Under the PLRA, 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). The same standards apply to screening Cistrunk's claims, even though she is not a prisoner. See 28 U.S.C. §1915(e)(2).
In determining whether the amended complaint states a claim, the court applies the same standard that it applies when considering whether to dismiss a case under Fed.R.Civ.P. 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)). To state a claim, the amended 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 amended complaint must contain enough facts, “accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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 or her of a right secured by the Constitution or the laws of the United States, and that whoever deprived him or her of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court liberally construes complaints filed by plaintiffs who are representing themselves (whether they are a prisoner or non-prisoner) and holds such complaints 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)).
B. The Plaintiffs' Allegations
The plaintiffs have sued defendants who work at Kettle Moraine and Fox Lake Correctional Institutions, as well as employees of the Wisconsin Division of Adult Institutions (DAI) and the Wisconsin Department of Corrections (DOC). Dkt. No. 8 at ¶¶5-8. The amended complaint names Kettle Moraine Warden Jon Noble, Kettle Moraine Deputy Warden Gierach, Fox Lake Captains Schueler and Congdon, DAI Security Chief Larry Fuchs, Kettle Moraine Records Officer A. Salas and DAI Administrator Sarah Cooper. Id. at ¶¶5-8, 36. The plaintiffs have sued the defendants in their individual and official capacities. Id. at ¶9.
The plaintiffs allege they have been a couple since they were teenagers, and that Cistrunk has visited Green while he has been in and out of prison since 1993. Id. at ¶11. In October 2016, Green was transferred to Fox Lake, so Cistrunk began visiting him there. Id. at ¶12. She would occasionally bring Green's family members, including his mother. Id. On December 20, 2018, Cistrunk had a contact visit with Green at Fox Lake, pursuant to DOC rules. Id. at ¶13. Two weeks later, on January 4, 2019, Green was placed on temporary lockup status at Fox Lake pending an investigation for “unauthorized transfer of property.” Id. Green states he was given no additional reason for being placed on temporary lockup; he alleges that Wisconsin Administrative Code DOC §303.10 requires staff to document the reasons for TLU placement and notify the incarcerated person of those reasons. Id. at ¶¶13-14.
On January 17, 2019, Captain Schueler issued Green a conduct report charging him with unauthorized transfer of property and “a trumped up charge” of possession of intoxicants. Id. at ¶15. The conduct report explained
that Schueler had been conducting investigations of intoxicants being introduced into the prison. Id. Schueler said he had information that Cistrunk was bringing drugs during contact visits and giving the drugs to the visitor's bathroom janitor, who would deliver the drugs to Green. Id. The report notes that Schueler searched the visiting room women's bathroom the morning after Cistrunk's December 20, 2018 visit, before any inmates had access to it, and located “a golf ball size yellow balloon concealed in the hand rail” of the toilet stall area. Id. The balloon contained “two baggies” of “a green leafy substance that tested positive for THC.” Id. Schueler removed the baggies but replaced the balloon. Id. Inmate David McAlister was the visiting bathroom janitor on December 21, 2018. Id. Prison staff searched McAlister that morning after he cleaned the bathroom and found “the golf ball size yellow package” on his person. Id.
The conduct report also described several phone calls between Green and Cistrunk during which Green instructed Cistrunk to pick up money. Id. Cistrunk, often under the name “Karen, ” also spoke with another inmate about “do[ing] a western union for ‘3.'” Id. Cistrunk later told Green she could not “keep running there every other day, they got ID's, Camera's [sic].” Id. Green was reported as telling his daughter on another phone call that he would “try an[d] do like a ‘glove' for you for him and then after that we'll double back.” Id. Green later instructed Cistrunk that his “guy said to take your time because last time, I guess you didn't close . . . what's his name . . . all the way.'” Id. During another call, Cistrunk asked Green, “was it ripe?”, to which Green said, “I didn't get it, I gotta wait until tomorrow man cause ah I gotta wait until tomorrow man, it's cool though, he say you did good too this time, he checked it.” Id.
Schueler interviewed Green, who denied he was having anyone pick up money or money orders and claimed that the numbers he was giving Cistrunk were “lottery numbers.” Id. He later admitted that other incarcerated persons were having their family or friends send him money orders, but he claimed they were for gambling. Id. Green denied having anyone introduce intoxicants into the prison, but he was unable to provide an alternate explanation for the terms and language he used on the recorded phone calls. Id.
On January 18, 2019, the prison held a hearing for the conduct report, during which Green provided a statement that Captain Congdon transcribed. Id. at ¶16. Green admitted guilt to the charge for unauthorized transfer of property but denied guilt for introducing intoxicants into the prison. Id. He stated that Cistrunk “never brought any THC that inmate McAlister was caught with.” Id. He reiterated that other inmates were sending his family and friends money orders for gambling. Id. Congdon, who served as the hearing officer, found Green guilty of both charges and sentenced him to 240 days' disciplinary separation. Id. at ¶17. The plaintiffs allege...
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