Smith, Cornell v. Erickson

Case Information

IN THE UNITO STATES DISTRICTS OF THE WESTERN DISIATC' THE RESENTATION

COANEL SMITH, Plaintiff-Appellant, V.

CASE NO. # 13-CV-100-WMC MS. K. ERICKSON, Defendants - Appellecs.

NOTICE OF AND MOTION TO APPEAL AN ADVERSE JUDGMENT DIS MESSING PLANITIFF-APPRLANT COANELL SMITH, 28 U.S. C. $1983$ CIVEL COMPLAINT AND MOTION IN FORA PAUPERS BY THE HON. JUDGE PRESTONS WELLIAMS M. CONLEY, ENTER AUGUST IS 2016. WESTERN DISTRICT COURT OF WESCANSEN. RUSSWET TO. Fed. R. App. P. 3(c). COMES NOU, Plaintiff-A ppellant COINEL SMITH, appering herein PRO SE, PROgheft, Tictor aboved entitle matter seeking to bring his Smith Notice of, andmotion

to a poeal, dismissing the ap pellent Syplth civil complaint. RUSUft to: Fev. R. App P. 300, when the district court of ap p ealant district court issued an order to dismiss a motion on Fema Pauperis is revievable on a poeal. See, Roberts V. United States District Court, 331 U.S. 844, 76 S.CV. 954, 941 L.Ed. 1326 (1950).

ISSUE PRESERVIO I. THE App eIant DISTRICT TRIGAL CENT ARLSED US DISCRETION BY UTILIZING BADLAM TO ERROMEDUSY SIRAYED OR UNDERMENE APPELANISMETH FREIST ANEH ONENI PERSIT TO ACCESS COURT AND FADLED TO ARTICULATED US REASON.

II. THE APPELANI DISTRICT TRIGAL CENT ARLSED US DISCRETEON BY UTILIZING BADLAM TO ERROMEDUSY SIRAYED OR UNDERMENE THE APPELANI SMETH FEGSIT AMEND- MENT PERSIT THAT PROTEERAT CRUEL AND UNUSUAL RHY ESTIMED TO OUT-OF CELL EXERCISE THAT STENED FROM MANDATORY CREATED SIAIE STATURE THAT CENTAENEO MANDATORY LANGUENT AND FADLED TO ARTICULATE UTS REASON.

TIT. THE APPELLANT DISTRICT

COURT A BUSP ETS OCCOREDON BY UTILIZING BADLAM TO E.PPONEDONDY RELAND DEPENDANTS-APPELLES FROM THER MANOATORY DUTLES, RESPONSIEBELTIEES AND OBLAGATION, OF THE RULES, REGULATION, AND POLICLE'S PROCEDURES NOT LENGTH TO THIS CASE AND FALLED TO ARTICULATED EAS REACH

THE APPELLANT DISTRICT CAST ARRANGED ETS DESIRETEOUSY E.ERONDONDY RELYTING ON BADLAM TO DESMEXED HES FERT AMENDMENT PESITT TO FELLED GREEVANCE ASSENST DEPENDANTS-APPELLES AS WELL APPELLEES RETALIZATION ASSENST APPELLANT SMETH FOR THAT FELTING AND STELL STRATEGOR UNDEPENENED MANOATORY STATES AND FEDERAL STATUTURES WITHOUT ARTICULAT- EUS ETS REACH.

ARGUMENT

I. THE APPELLANT DISIRREN I REA COUPARMED EIS ORIERENONI BY UTELEZENG BADLAWTO ERROMEDUSLY SIRAYED OR UNDERMENE APPELLANT SUCCIT FERSI (T) AMENDMENT REAHI TO ACRES COUPRAND FACLED TO ARTICULATED EIS REAION. A. Federal Notice pleading system.

TO state a cognizable claim under the Federal notice pleading system, the plaintiff is received to provide a short and plain statement of the claim stowing that [he] is entitled to refie-t-1. Fed. R. C. V. P. 8 (a) (e), it is necessary for the plaintiff to plead specific facts and his statement need only "give the defendant fair notice of what the ... claim and the grounds upon which it rests." Bell Atlantic Corp. V. T. Twombly, 550 U.S. 544,555 (2007) (gnoting conley V. G. 105, 555 U.S.44, 10 (2007)). However, a complaint that offers "labels and conclusions" or formulatic recitation of the elements of a cause of action will not do." Ashcroft V. Igbal, 550 U.S. 662,678 (2007)

WSPFV.MeDornel, 418 V.S. 539 (1974), Andrade V. Hauch, 452 F. 2 d 1071,1072 (5th cir. 1971).

LFourteeth Amendment right to access extends to 3985 auteconcering conditions of incercerationd. It is inconsistent with the due process rights of innate-priisoned to dismiss civil rights cases filed by a ppeflant for the limited reasons advanced by the tiigl courtin this case. See, Mitobum V. Rurvis, 1050 F. 2 d 647 (5th cir. 1981).

Lquoting iuombly, 550 U.S. at 555). To state a claim, a complaint must contain sutricient factual matter accepted as true, "that is plausible on its face." Id. Lquoting iuombly, 550 U.S. at 570 ). "A claim has facial plausibility when the plaint of pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing, 550 U.S. at 556). The complaint at all eagations "must be enough to raise at right to relief above the Speculative level." iuombly, 550 U.S. at 555 (citation omitted). An considering whether a complaint states a claim, pour to bnould follow the principles setienth in iuombly by first, "identifying pleadings that, because they are no more than conclusions must be supported by factual alleeations." Id. the case well-pleaded factual alleeations, the court must second, "assum their veracity and then determine whether they plausibly give rise to

Telief." Id. To state a claimfor

feliefupder 42 U.S.-C. 1982 . Plantif must allege that. The was de prived of right seauved by the constitution or taw of the unted states; and 2) the deprivat.an was visited upon him by a person of persons acting under color of stat law. Buchman-moore V. county of Milukukee, 570 F. 3d 824, 827 (7th c.r. 2009) (citing Kramer V. village of North Fend du Lac, 384 F. 3d 856, 860 (7th c.r. 2004)) See also Gomez V. 1980, 446 U.S. (c 35, (040 (1980). The district court, is oblie eed to give plaintift 3 or 0 se alleations, however inartfully pleaded, "plibed construction. see Erickon V. Parous, 551 U.S. 89, 94 (200)) (quoting Estell V. Gambte, 429 U.S. 97, 106 (1970). A claim may only be dispis 3 ed if "it appears not set of toets in support of his claim which would exhibe him to relief. conley 42 Gibson, 355 U.S. 41, 45-46 (1957). "Allegation of the pos, se complaint

are to beheld less Stingent Standered than formel pleading drafted by lawyers. Haines $v$ . Kerner, 401 U.S. 519 S 20. Prisoner have a constitutional right to "adequate" effective and meaningful akcess to the carts. See Bounds V. Smith, 420 U.S. 817, 922, 97 S.C. 1493, 1495 (1977), Rudolph V. Locke, 594 F. 2d 1676, 1678 (5th cir. 1979). This right is well established both in Hebeas corpus action, Johnson V. Avery, 398 U.S. 482 (1969), and in civil right cases, woolf V. McDonnell, 418 U.S. 539 (1974), Andrade V. Rauch, 452 F.2d 1671, 1672 (5th cir. 1971)

Fourteeth Amendment right to access extends to 8982 suit concerning conditions of in caveration. It is inconsistent with the due process rights of inmate py: 5005 to dismisses a civil rights case filed by ap pellent for the limited reasons.

advanced by the t yiel court in this case. See, Mitehuan v. Purvis, 650 F. 2d (5th cir. 1981). (a). Plaintiff-Apeellent Smith has a constilutional right to aceas to the courts and this 6 peellant district court has make sure its close a. Shutted its doof on his fartteenth Amondment right by straying or undermine that rightshy utili zing Gadlous. Prisoners have a constitutional right of access to the courts for pursuing postconviction remedies and for cheltemging the conditions of their confinement. Lewis v. Casey, 318 U.S. $343,354-55$ (1996), campbell v. Miller, 787 F. 2d 21) 225 (7th cir. 1986) (citing Smith, 430 U.S. $539,578-8$ (1979) "Procuriel v. Mertinez, 416 U.S. $396,419$ (1979) Johnson v. Avery, 393 U.S. $483,487$ (1969). However, an inmate's right of access to the courts is not uncontelition. See Green v. Warder, U.S. Fertitentiary, 699 F. 2d 264, 369 (7th cir. 1983).

Inmate prisoners access to the courts must be adequate, effective and meaningful." Bounds-v. Smith, supra.

It is thine of these if it embraces no more than being permitted to file a paper that, without deter mination of whether it state a claim legally sufficient and withing the court's illssoliction, is subjected to dismissal of convenience to court and liticents.

In discussing right of access Bounds refers to the rights of an indigent to a tvanscripts in order that he have adequate and effective appellate (view, and the right to counsel in order that he have a meaningful appeal. Id. Both of these rights which I each beyond filing suit. The presence of a state of federal prisoner as party or witness in circuit court can be secured under a writ of habeas corpus as testification. um, which the circuit court had disdictionary authority to issue. Sec, FerdV. Catbello, 577 F. 2d 401 (Oth Cr. 1978) state V. Merris, 546 F. 2d 730 (Oth Cr. 1976).

The ap peltant district court abused its disceration by utilizing badlaw to evencously shuted it doors in the face of ap peltant Smith by straying a undernine the right to access of the court without given him the chance to prove his case.

II. THE APPELLANT DISIRECT TREAL COURT ABUSED ETS DESCARTION By USELEYING RADLAM TO E. RROMEOUSLY SIRAYEO OR UNDERMEN THE APPELLANT SANTH EJEMPH AMENOMENT RECUT THAT PROHEROCT CRIEL AND UNUSUAL FUNGSTMENT TO OUT-OF- CELL EXERCISE THAT STEMED FROM MANOAT- ORY CREATED STATE STATURE THAT CAN ITALNEO MANOATORY L.Angmage ANO FACLEO TO ACTEOLATE ETS REASON (b). The plaintift-appellant Smith possesses overwinelmans evidence that He's has been denied his mandatory only means to-out-of-cal/exercise

The Eighth Amendment prohibits conditions of confinement that "unvoye the wanton and unnecessaryintrition of pain" or that we "prosely dispvo portionate to the severity of the evime warrantine imprisonment." Anodes v. chopman, 452 U.S. 337,347 (1981). "A] prison official vidates the Eighth Amendment only when two require-ments we met. First the de privat- ion must be. Objectively, 'Sufficienty serious: 'a prison officials act or omission must result in the denial of 'the minimal civilized ermef v. Brennan, Sll U.S. 223, 834 (1994) (citations omitted). a 'sufficiently culpable state of that state of mind requirement is one of 'deliberate ind it e tence' to innate health or satety." Id. (citations omitted). The first objective component is contextual and responsive to 'contemporaly standards of decency." Hudson V. McMillan, 503 U.S. 1, 8 (1992) (quoting Estelle V. Gamble, 429 U.S.

97, 103 (1976). "For instance, extreme deprivation are required to make out a condition-of-confinement claim." Id. at 9-9. "Long, these deprivations denying 'the mine civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." (v. 1500 V.) weiter, 501 U.S. 294,298 (1991) (quoting Rhodes, 452 U.S. at 347).

Prison officials must "act with a sufficiently cul pable state of mind" or delibegate indifference to meet the subjective requirement. Johnson V. Snyder, 444 F. 261 S 79 , S 85 (7th c. 2001). Deliberate indifference is not negligence of even gross negligence-it "approaches intentional uvrendizing," essentially a criminal recklessness. Standard, that is, ignoring a known risk. Id. (citations omitted).

A. Plaintiff Appellant Smith right to-out-of-cell exercise is Stem from from a state struture. (v. 3000 V. 2001). "The deportment "Shall" provide as much leisure time activity as possible for inmates, consistent with available reasons and schedule programs.

and work. Leisure time activity is two time outside the cell of room during which the inmate may be involved in activities such as recreational regating, sport film and television viewing, and handicrafts," Id. Wis. Admin. code: 300 C 309.3000 . The apptent district court is opposed of this issue of Subjed matter. (Opinion ANO ORDER Rece 25). Plaintiff Appetent Smith, has been denied to -out-of- cett exercise four (4) months and again out-of-cell-exercise two (2) months in two (2) seprated incidence. (2), numerated, "Each institution shall permit inmates to participate in leisure time activities for at least 4 hours per week." Because of the overwhelming evolving of inmates institution, 4 recreation is impossible to attend. AUGUST 15 , 2016. The word Shall means mandatory. See, State ex rel. Jones v. Franklin, 444 W.w. 2d 238, 151 Wis. 2d 919 (Wis. App. 1929). Admin. startwe rules are subject to the same rules of construction as applied to the statutes. Brooks

V. Labor and Industry Review Commission, 139 wis. 2010b, 10. 105 N.W. 2d 765, 706 (ct. App. 1987). The primary source of the meaning of a rule is its language. State ex ref. Smith V. City of Oak K eek, 139 wis. 2d 788, 795, 407 N.W. 2d 981, 904 (1987). Here, the deliberate indifferent to Farver's satety was demonstrated by cms's condoning of its employees not following policies. As we recently note, "Jail managers who decided to take no, precautions against the possibility of inmate suicide - to having no policy, is guilty of deliberate indeterence in the relevant sense..." See, woodward V. Corfactional Medical Services, 368 F.3d 911, 930,81, 32 (7th c.v. 206th.

Bouncher V. Brown County, 272 F.3d 494, 486 (7th c.v. 2061). Id. standard operation Procedural. D.A.E. #900.816.01. When an inmate such as Appellant Smith posses a proority, wee Pass to attend to his chief primary religious services that pass supeable his outside executive activity. See, D.A.E. Pp. P. Iff two passes of received for the same inmate at the same

time the higher priority pass will be is sided. "The lower priority pass will be makal a conflict" and returned to the issuing party." "IF, the priority order will be.

1. court-ordered meanings/telephone calls
2. URinalysis.
3. Disciplinary meanings/PAC/ Parole
4. HSu
5. Psychological Services b. Religious services. Id. D.A.T. P&;P#. 900.216 . OI(E)(F).
6. The defendants - Appellees MS. Erickson violated the appellant Second by the fourteenth (D4) that the's posses both proptly right state statutes. W is. Admin. code. 300 C 301.36 (1)(2). His rights was clearly established as well the Policy and procedures to legal is stripped him of the right due to univaction

On his part, but there is absolutely no evidence or record of such action, behavior and conduct of Appellant Smith. Just detendants-appell ecs.

The Policy of Procedure means a method, A, step by step process too accomplish, a task or to give instruction to denied, removed etc. O.A.I. P.S.P# 900. 916. of (H). The Appellant District court seems to believe that the appellants Smith interpreting of the procedure is wrong. See, (ofrision and order Paqe#s), dated: August 15, 2016. Id.

The Appellant District court, opinion and order to dismissed on that claim is significant wrong. As a matter of fact, It contained the key instruction given of Procedure. One Process given in the United States Supreme Court. Welf V. Mc Donnell, Prisoners who are subjected to a disciplinary proceeding have a liberty interest at state that is entitle to the minimum due process protection discussed in Welf (1974) including notice of the charges, a limited right to present evidence and a written statement of the evidence -110 -

on which the hearing committee relied and the reason for the decision. woiff v. Mc Donngall, $418\mathrm{N},3539$ $563-67,445.\mathrm{c}\mathrm{t}\mathrm{.2463},2418-36,41$ L.Ed. $2d435(1979)$ . See, casted v. Kolb, 500 N.w. 2 d 460 (wis. App. 1993). The court made clear that when a state official abuses his or her authority, and as a consequence vidates a persons right to procedural due process, that official may be subject to liability under $42\mathrm{V}.s.c\mathrm{.31492}$ ; En Zinechaza, hospital officials had state authority to deprive person of liberty. Thus "the constitution imposed on them the state's concomitant duty to see that no deprivat on occurs without adequate procedural protectionists. Zinkman, 44 U.S. at 135,110 S.Ct. at 989 . The court said that the hospital officials' conduct was not unathorized "In the sense the term was used in Forrath and Hudson. The court said: "The deprivation here is 'unauthorized only in the sense that it was not an act sanctioned by state law but instead was a deprivation of constitutional rights... by an official's abuse. of his position:

The RPFELAT ORSTOAT COURT BENSED IT'S OESERETION BY PERONE- OU'LY RELYING BADAWTO DENESSED HIS FIRST ANENOMENT RIGHT TO FELED GREEVANCE AGAEAST. DEPENDANTS- APPELLES REPRELATION AGAEAST APPELANT SHETT FOR THAT FELING AND STEL STRAYING OR UNDERVONE MANCOROY STATES AND FEDERAL SISTIFICAED WITTENT ARTICULATION IT REASON. (C). The apptellant Smith is reguired to eghoust admini- strotive temestet oete commencinghis lawstait conceting prison condition. PUSAUTt O'2U.S.C. 31991600

Can, "Lwlo action shall be brought with respect to prison conditions under section 1985 of this title, of any other federal law, by a prisoner other of actional facility until Remedies as are ayeltable are exhausted." Thus, it a prison has an internal administrative grivance system theorgh which a prison can seek to collect a problem; then the prison must utilize that administrative system to offer filing action." Mass by V. Helmon, 1907 Fed. 2d 72, 1880 (2th Gr. 1997). "BInless the prisoner completes the administrative process by establishing the rules the state has established for that process.

The appell eess, MS. EErckson

Prevented the appellent Smith from utilizirg that system by causing the power. Appellees, Ms. Kidi and Ms. Moon conspiled by aided abetted against appellant Smith, by violating his first amendment (ight of Frecom of speech by relvitten the yutes that prevented appellant Smith from engaging in such right by The state and Fed eral (PLRA) that governs the administrative grievance -exhaustion requirements the United States suereme court held to be mandatory. Forter y, N ussle, 334 U.S. Sile, 524 (2003). A, Femed that pr ison officials prevent a prion from utilizing is not und ${\sigma }^{3}3197$ e(a). Oate V. Lapp $2n,376$

The division of collections must comply with the admini. strotive rules promulgated to goveln the Division's opesation. State ex vel Richards v. Tract 145 wis. 2d. 677, 680, 429 N. U. 2d 81, 82 (ct. App.1988). The Appealort District court opinion MyO ORDER on this claim is nullified.

• Concubtsen witerefose App e 11 ant Smith recu est Thot disty. dPperf veapon this case and yont him the telief hes Seeking in his civil lawsuit. Octed. September 8, 2016

Case Details

Case Name: Smith, Cornell v. Erickson

Court Name: District Court, W.D. Wisconsin

Date Published: Sep 19, 2016

Citation: 3:13-cv-00600

Docket Number: 3:13-cv-00600

Court Abbreviation: W.D. Wis.