The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LEE ANTHONY BROWN,
Plaintiff,
v. Case No. 23-CV-497
WARDEN CHERYL EPLETT,
SECURITY DIRECTOR TONEY,
and JOHN/JANE DOE,
Defendants.
ORDER
Plaintiff Lee Anthony Brown, who is confined at Oshkosh Correctional
Institution and representing himself, filed a complaint under 42 U.S.C. § 1983
alleging that the defendants violated his constitutional rights. (ECF No. 1.). Brown
also filed a motion for leave to proceed without prepayment of the filing fee. (ECF
No. 2.)
The court has jurisdiction to resolve Brown’s motion and screen the complaint
in light of Brown’s consent to the full jurisdiction of a magistrate judge and the
Wisconsin Department of Justice’s limited consent to the exercise of magistrate
judge jurisdiction as set forth in the Memorandum of Understanding between the
Wisconsin Department of Justice and this court.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE
The Prison Litigation Reform Act (PLRA) applies to this case because Brown
was incarcerated when he filed his complaint. See 28 U.S.C. § 1915(h). The PLRA
allows the court to give a prisoner plaintiff the ability to proceed with his case
without prepaying the civil case filing fee. 28 U.S.C. § 1915(a)(2). When funds exist,
the prisoner must pay an initial partial filing fee. 28 U.S.C. § 1915(b)(1). He must
then pay the balance of the $350 filing fee over time through deductions from his
prisoner account. Id.
On April 18, 2023, Brown filed a motion for leave to proceed without
prepayment of the filing fee. (ECF No. 2) On April 20, 2023, the court ordered
Brown to pay $25.88 as an initial partial filing fee by May 11, 2023. (ECF No. 6.)
Brown paid the fee on May 2, 2023. The court will grant Brown’s motion for leave to
proceed without prepayment of the filing fee and allow him to pay the full filing fee
over time in the manner explained at the end of this order.
SCREENING OF THE COMPLAINT
Federal Screening Standard
Under the PLRA the court must screen complaints brought by prisoners
seeking relief from a governmental entity or officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). 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).
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In determining whether the 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)). To state a
claim 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 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 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 color
of state law. D.S. v. E. Morris 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 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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Brown’s Allegations
Brown alleges that on December 7, 2022, non-defendant Officer Neumier
delivered him three pieces of legal mail. (ECF No. 1 at 2.) All three pieces of mail
were opened and then taped back together, indicating that they were opened
without Brown being present. (Id. at 2-3.) Brown also noticed that the letters were
more than one month old. (Id. at 3.)
Analysis
Brown claims that his constitutional rights were violated when his legal mail
was delayed and his legal letters were opened outside his presence. Prisoners have
a “First Amendment right to both send and receive mail.” Kaufman v. McCaughtry,
419 F.3d 678, 686 (7th Cir. 2005). While this right is not unlimited and most mail is
subject to examination to prevent contraband from entering the prison, a prisoner’s
legal mail “is entitled to greater protections because of the potential for interference
with his right of access to the courts.” Id. Where officers open a prisoner’s legal mail
outside of the prisoner’s presence, they “potentially violate the inmate’s rights” Id.
Brown may proceed on a claim against the John or Jane Doe officer who
opened his mail outside his presence. He may not, however, proceed on a claim
against Warden Cheryl Eplett or Security Director Toney. He does not include any
allegations about what they did or did not do to interfere with his legal mail.
Brown also sues the defendants in their official capacities. A suit against a
state official in his or her official capacity is a suit against the official’s office. As
such, it is no different than a suit against the state itself. Will v. Mich. Dep’t of
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State Police, 491 U.S. 58, 71 (1989). Brown’s official capacity claims against the
defendants are therefore claims against the state. When a plaintiff seeks damages
rather than injunctive relief, “neither a State nor its officials acting in their official
capacities are ‘persons’ under § 1983.” Id. Because Brown seeks only damages
against the defendants, he may not proceed against them in their official capacities.
Because the only remaining defendant is a John or Jane Doe defendant, the
court will retain Warden Cheryl Eplett as a defendant for the limited purpose of
helping Brown identify the name of the Doe defendant. Eplett does not have to
respond to the complaint. After Eplett’s attorney files an appearance, Brown may
serve discovery on Eplett to get information that will help him identify the name of
the Doe defendant. Eplett does not have to answer discovery on any other topic.
After Brown learns the name of the Doe defendant, he must file a motion
identifying who that person is. At that time the court will dismiss Eplett as a
defendant. Brown must identify the name of the John or Jane Doe defendant within
60 days of Eplett’s attorney appearing in the case. If he does not, or does not explain
to the court why he is unable to do so, the court may dismiss his case based on his
failure to diligently pursue it. Civil L.R. 41(c).
CONCLUSION
NOW, THEREFORE, IT IS HEREBY ORDERED that Brown’s motion for
leave to proceed without prepayment of the filing fee (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that defendant Security Director Toney is
DISMISSED.
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IT IS FURTHE ORDERED that Cheryl Eplett remains a defendant for the
limited purpose of helping Brown identify the John or Jane Doe defendant.
Under an informal service agreement between the Wisconsin Department of
Justice and this court, a copy of the complaint and this order have been
electronically transmitted to the Wisconsin Department of Justice for service on
Warden Cheryl Eplett. It is ORDERED that, Eplett does not have to respond to the
complaint; however, she shall respond to discovery requests that Brown serves in an
effort to identify the Doe defendant’s name. Eplett does not have to respond to
discovery requests about any other topic.
IT IS FURTHER ORDERED that Brown must identify the John or Jane
Doe defendant’s real name within 60 days of Eplett’s attorney filing an appearance
in this case. If Brown does not identify the Doe defendant’s name by the deadline, or
advise the court why he is unable to do so, the court may dismiss this case based on
his failure to diligently prosecute it.
IT IS FURTHER ORDERED that the agency having custody of Brown
shall collect from his institution trust account the $324.12 balance of the filing fee
by collecting monthly payments from Brown’s prison trust account in an amount
equal to 20% of the preceding month’s income credited to Brown’s trust account and
forwarding payments to the Clerk of Court each time the amount in the account
exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be
clearly identified by the case name and number assigned to this case. If Brown is
transferred to another county, state, or federal institution, the transferring
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institution shall forward a copy of this order along with his remaining balance to
the receiving institution.
IT IS FURTHER ORDERED that a copy of this order be sent to the officer
in charge of the agency where Brown is confined.
IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner
E-Filing Program institutions1 must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the court. Plaintiffs who are
inmates at all other prison facilities must submit the original document for each
filing to the court to the following address:
Office of the Clerk
517 E. Wisconsin Avenue, Room 362
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS.
It will only delay the processing of the matter.
Brown is further advised that failure to make a timely submission may result
in the dismissal of this case for failure to diligently pursue it. In addition, the
parties must notify the Clerk of Court of any change of address. Brown is reminded
that it is his responsibility to promptly notify the court if he is released from
custody or transferred to a different institution. Brown’s failure to keep the court
advised of his whereabouts may result in the dismissal of this case without further
notice.
1 The Prisoner E-Filing Program is mandatory for all inmates of Green Bay
Correctional Institution, Waupun Correctional Institution, Dodge Correctional
Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
and Oshkosh Correctional Institution.
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Enclosed is a guide prepared by court staff to address common questions that
arise in cases filed by prisoners. Entitled “Answers to Prisoner Litigants’ Common
Questions,” this guide contains information that Brown may find useful in
prosecuting his case.
Dated at Milwaukee, Wisconsin this 2nd day of June, 2023.
BY THE COURT
e a GE. ea
WILLIAM E. nf
United States Magistrate Judge