Ferguson v. Dier-Zimmel

809 F. Supp. 668, 1992 U.S. Dist. LEXIS 19916, 1992 WL 386251
CourtDistrict Court, E.D. Wisconsin
DecidedDecember 7, 1992
DocketNo. 92-C-920
StatusPublished
Cited by2 cases

This text of 809 F. Supp. 668 (Ferguson v. Dier-Zimmel) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ferguson v. Dier-Zimmel, 809 F. Supp. 668, 1992 U.S. Dist. LEXIS 19916, 1992 WL 386251 (E.D. Wis. 1992).

Opinion

DECISION AND ORDER

MYRON L. GORDON, Senior District Judge.

Plaintiff Charles Ferguson, currently incarcerated at the Milwaukee County House of Corrections, seeks redress under 42 U.S.C. § 1983 from the above named defendants. Mr. Ferguson’s civil rights complaint is accompanied by a petition to proceed in forma pauperis. This petition will be denied.

In order to authorize a litigant to proceed in forma pauperis, the court must make two determinations: first, whether the litigant is unable to pay the costs of commencing the action; and second, whether the action is frivolous or malicious. 28 U.S.C. § 1915(a) and (d). The court is obliged to give Mr. Ferguson’s pro se allegations, however inartfully pleaded, a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972).

Mr. Ferguson’s affidavit of indigence indicates that his only asset is $210.00 in his prison trust account. Accordingly, I conclude that Mr. Ferguson has satisfied the requirements of § 1915(a) and is unable to pay the costs of commencing this action.

Mr. Ferguson must demonstrate that his civil rights action has merit as required by 28 U.S.C. § 1915(d). An action is frivolous, for purposes of § 1915(d), if there is no arguable basis for relief either in law or fact. See Denton v. Hernandez, — U.S. —, —, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992); Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).

In his first claim, Mr. Ferguson alleges that “Defendant Zimmel did conspire with Defendant Dagelan to cause the period of plaintiff’s corporal punishment.” Mr. Ferguson charges that the “Intensive Sanction Program,” which appears to be Mr. Ferguson’s present form of incarceration, requires “electronic monitoring” that he believes to be “unconstitutional because it allows [the] defendants to prescribe corporal punishment.” I construe the plaintiff’s first claim to be that his Eighth Amendment right against cruel and unusual punishment, made applicable to the states by the Fourteenth Amendment, was violated by the defendants as a result of their efforts to outfit him with some type of electronic monitoring device.

To establish an Eighth Amendment violation, “a plaintiff must show that prison officials intentionally inflicted excessive or grossly severe punishment on him or that the officials knowingly maintained conditions so harsh as to shock the general conscience.” Stringer v. Rowe, 616 F.2d 993, 998 (7th Cir.1980). Actual corporal punishment inflicted on Mr. Ferguson could state a claim of cruel and unusual punishment under the Eighth Amendment. [670]*670In fact, the Wisconsin Administrative Code prohibits corporal punishment. See Wis.Admin.Code § DOC 328.18(2) (Apr. 1990). However, Mr. Ferguson’s allegations really appear to be that electronic monitoring, which he has self servingly described as “corporal punishment,” violates his Eight Amendment right against cruel and unusual punishment.

In my opinion, electronic monitoring is not corporal punishment at all because it does not involve punishment inflicted directly on the body. Is electronic monitoring a form of cruel and unusual punishment? Electronic monitoring is a specific sanction that is part of Wisconsin’s Intensive Sanction Program which is a form of incarceration authorized by Wisconsin law. See Wis.Stat.Ann. § 301.048 (1991 & Supp.1992). I conclude that Mr. Ferguson’s first claim fails arguably to allege an Eighth Amendment violation or state a claim for relief under 42 U.S.C. § 1983 and is frivolous, having no arguable basis in law. See Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831.

Mr. Ferguson’s second claim alleges that “the use of plaintiff’s confidential prison records by Defendant Dagelen to possess and to schedule the wrongful punishment upon the person of plaintiff and to use it on a revocation hearing as a criteria to revócate [sic] plaintiff’s M.R. supervision violates plaintiff's right to privacy.” Here the plaintiff is obviously alleging a violation of some type of privacy right.

The" Supreme Court has held that “personal rights found in [the] guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’....” Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). Flowing from this view of the right to privacy, “[l]ower courts have specifically rejected the assertion of a constitutional right to privacy in records relating to criminal proceedings or incarceration.” Jensen v. Satran, 633 F.Supp. 1187, 1191 (D.N.D.1986), aff'd, 808 F.2d 840 (8th Cir.1986). The second claim fails arguably to allege a violation of his right to privacy or state a claim for relief under 42 U.S.C. § 1983 and is frivolous, having no arguable basis in law. See Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831.

Mr. Ferguson’s third and final claim alleges that Defendant Fiedler “has ordered that all legal materials pertaining to Wisc.Stats. ss. 301.10, 301.03, 301.040, 301.055, 302.02, 302.06, 302.11, 302.33, 302.425, 303.065, 304.02, 304.06, 304.071 be removed from the library here because he don’t [sic] want inmates here to discover a stratgy [sic] to overcome wrongful corporal punishment.” In this claim Mr. Ferguson appears to be contending that defendant Fiedler unlawfully deprived him of his constitutional right to meaningful access to the courts by foreclosing his ability to review various sections of the Wisconsin statutes.

The Supreme Court has acknowledged that the fundamental constitutional right of access to the courts “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977).

To prove a violation of this right an inmate must demonstrate that prison officials failed to satisfy their affirmative duty to assist prisoners “in the preparation and filing of meaningful legal papers by providing ... [them] ... with adequate law libraries or adequate assistance from persons trained in the law.” Martin v. Davies, 917 F.2d 336, 338 (7th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 2805, 115 L.Ed.2d 978 (1991).

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Bluebook (online)
809 F. Supp. 668, 1992 U.S. Dist. LEXIS 19916, 1992 WL 386251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferguson-v-dier-zimmel-wied-1992.