Opinion
Case No. 16-CV-133
05-05-2016
DOMINIQUE DEWAYNE GULLEY-FERNANDEZ, Plaintiff, v. HAKIM Q. NASEER, Defendant.
SCREENING ORDER
The pro se plaintiff, Dominique Dewayne Gulley-Fernandez, is a Wisconsin state prisoner. He filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on the plaintiff's petition to proceed in forma pauperis.
The plaintiff has been assessed an initial partial filing fee of $.92. He has paid a partial initial partial filing fee of $.24. The plaintiff requests that the Court waive the remainder of the initial partial filing fee because he lacks funds to pay it. The Court will grant this request.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised 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).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a synonym for "frivolous," "is more usefully construed as intended to harass." Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a "short and plain statement of the claim showing that [he] is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and his statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers "labels and conclusions" or "formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, "that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, "identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
To state a claim for relief 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 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff is suing fellow inmate, Hakim Q. Naseer. The plaintiff alleges that Naseer sexually harassed him over a period of time, resulting in two Prison Rape Elimination Act investigations that were determined "substantiated." The plaintiff claims that Naseer's actions violated his constitutional rights. He requests that the Court order the Wisconsin Department of Corrections to transfer him to another institution. The plaintiff also seeks monetary damages.
To state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must show that he was deprived of a constitutional right by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) ("The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power 'possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.'") (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). A fellow inmate is not a "state actor" as contemplated under § 1983. A plaintiff cannot proceed with a federal claim under § 1983 against a non-state actor. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999); Gayman v. Principal Fin. Servs., Inc., 311 F.3d 851, 852-53 (7th Cir. 2003). Accordingly, the plaintiff cannot sue Naseer under § 1983. (The Court notes that the plaintiff is proceeding on an Eighth Amendment claim based on allegations that prison officials have continually housed him near inmates who sexually harass and assault him, Case No. 15-cv-795-RTR.)
This plaintiff has provided no arguable basis for relief, having failed to make any rational argument in law or fact to support his claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)).
ORDER
IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma pauperis (Docket No. 4) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff's motion to allow plaintiff to pay initial partial filing fee of $.24 and motion to waive the remainder of the initial partial filing fee (Docket No. 8) is GRANTED.
IT IS FURTHER ORDERED this action is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has brought an action that was dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1).
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of Corrections or his designee shall collect from the plaintiff's prison trust account the $349.76 balance of the filing fee by collecting monthly payments from the plaintiff's prison trust account in an amount equal to 20% of the preceding month's income credited to the prisoner'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 action.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that a copy of this order be sent to the Warden of the Wisconsin Secure Program Facility.
Dated at Milwaukee, Wisconsin, this 5th day of May, 2016.
BY THE COURT:
/s/ _________
HON. RUDOLPH T. RANDA
U.S. District Judge