Tabbert v. Kollmann

E.D. Wisconsin

Tabbert v. Kollmann

District Court, E.D. Wisconsin·Decided December 30, 2019·No. 1:19-cv-01513·Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN DEREK ARTHUR TABBERT, Plaintiff,

v. Case No. 19-C-1513 CO JILL KOLLMANN, Defendant. SCREENING ORDER

Plaintiff Derek Arthur Tabbert, who is currently incarcerated at Green Bay Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. Accompanying the complaint was a motion for leave to proceed without prepayment of the filing fee as permitted under 28 U.S.C. § 1915. The court waived the initial partial filing fee, which was calculated at thirty-nine cents, but allowed Tabbert twenty-one

days in which to notify the court whether he wished to voluntarily dismiss his action to avoid the possibility of incurring a strike under 28 U.S.C. § 1915(g) if his complaint was dismissed for failure to state a claim or for some other reason authorized under § 1915(e)(2). Tabbert has not withdrawn his complaint, and so, upon its finding that Tabbert is indigent, the court will grant his motion to proceed without prepayment of the filing fee, screen the complaint as required under §1915A, and address Tabbert’s motions to appoint counsel. SCREENING OF THE COMPLAINT 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). To state a cognizable claim under the federal notice pleading system, Tabbert 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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff’s favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint’s allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

ALLEGATIONS OF THE COMPLAINT Tabbert accuses Correctional Officer Jill Kollmann of violating his rights by telling the 400WPNG unit of segregation at Green Bay Correctional Institution that he raped two little girls, was in segregation for performing oral sex, and has “Adi” as well. Because of these statements, Tabbert alleges that CO Kollmann put his life in immediate danger. Tabbert requests transfer to a different institution and damages of $100,000,000 for pain and suffering. THE COURT’S ANALYSIS The complaint fails to state a claim upon which relief can be granted. A defamatory statement may constitute a deprivation of liberty within the meaning of the Fourteenth Amendment, but only if it alters a previously recognized right or status. Hinkle v. White, 793 F.3d 764, 767–68 (7th Cir. 2015) (citing Paul v. Davis, 424 U.S. 693, 708–09 (1976)). Here, we cannot tell from the complaint whether the statements allegedly made by CO Kollmann were false and thus defamatory. If true, the disclosure that Tabbert had “raped two little girls” and was in

segregation for having oral sex would not violate Tabbert’s constitutional rights, unless it was intended by CO Kollmann and did in fact lead to Tabbert’s being harmed by other inmates. This is not to say that, assuming the allegations are true, CO Kollmann acted properly. Indeed, she may have violated institutional rules or regulations by such a disclosure and it seems unwise to unnecessarily disclose such information to other inmates. But this court is unaware of any case holding that such a disclosure, absent more, amounts to a violation of an inmate’s constitutional rights. Inmates have no constitutionally protected privacy interest in their criminal or disciplinary records. The allegation that CO Kollmann also disclosed that Tabbert has “Adi,” if Tabbert actually meant AIDS or some similar medical condition, however, may be different. Some courts have

held that unnecessarily disclosing that an inmate has HIV, or the AIDS virus, may amount to a violation of an inmate’s right to privacy under the Fourteenth Amendment. See, e.g., Simpson v. Joseph, No. 06-C-200, 2007 WL 433097, at *15 (E.D. Wis. Feb. 5, 2007) (“Nevertheless, in light of the Seventh Circuit’s recognition that prisoners have a limited right to privacy and the reasoning of the Second Circuit in Powell, 175 F.3d 107, and the Third Circuit in Delie, 257 F.3d 309, the court concludes that there is a Fourteenth Amendment right to privacy that protects medical information concerning an inmate’s HIV-status from unjustified disclosures by governmental actors.”). But the complaint makes no such allegation. Even the allegations the complaint does make lack any specifics as to when the disclosures occurred and to whom. Tabbert’s complaint therefore fails to state a federal claim upon which relief may be granted. If Tabbert wants to proceed, he must file an amended complaint curing the deficiencies in the original complaint as described herein. Such amended complaint must be filed on or before February 3, 2020. Failure to file an amended complaint within this time period will result in

dismissal of this action. Tabbert is advised that the amended complaint must bear the docket number assigned to this case and must be labeled “Amended Complaint.” The amended complaint supersedes the prior complaint and must be complete in itself without reference to the original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056–57 (7th Cir. 1998). In Duda, the appellate court emphasized that in such instances, the “prior pleading is in effect withdrawn as to all matters not restated in the amended pleading.” Id. at 1057 (citation omitted).

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