UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

CONSTANTINO PEREZ ROMANO,

Plaintiff, v. Case No. 23-CV-631-JPS

BROWN COUNTY JAIL, CPL. ENGELS, and CPL. DEQUAINE, ORDER

Defendants.

Plaintiff Constantino Perez Romano, an inmate confined at the Brown County Jail, filed a pro se complaint under

alleging that the defendants violated his constitutional rights. ECF No. 1. This Order resolves Plaintiff’s motion for leave to proceed without prepaying the filing fee and screens his complaint. 1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE The Prison Litigation Reform Act (“PLRA”) applies to this case because Plaintiff was a prisoner when he filed his complaint. See

(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.

§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing fee.

(b)(1). He must then pay the balance of the $350 filing fee over time, through deductions from his prisoner account.

On June 12, 2023, the Court ordered Plaintiff to pay an initial partial filing fee of $47.95. ECF No. 6. Plaintiff paid that fee on July 5, 2023. The Court will grant Plaintiff’s motion for leave to proceed without prepaying the filing fee. ECF No. 2. He must pay the remainder of the filing fee over time in the manner explained at the end of this Order. 2. SCREENING THE COMPLAINT 2.1 Federal Screening Standard Under the PLRA, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or an 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). 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,

(7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,

(7th Cir. 2012)). 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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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.”

(citing Twombly,

). To state a claim for relief under

, 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 the color of state law. D.S. v. E. Porter Cnty. Sch. Corp.,

(7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,

(7th Cir. 2009)). The Court construes pro se complaints liberally and holds them to a less stringent standard than pleadings drafted by lawyers. Cesal,

(citing Perez v. Fenoglio,

(7th Cir. 2015)). 2.2 Plaintiff’s Allegations Plaintiff alleges that on February 23, 2023, Plaintiff had a phone conference with his lawyer while housed in the Brown County Jail. ECF No. 1 at 3. The intake conference room was busy so Plaintiff was instructed to take his call in the open waiting area where other people could hear his conversation.

Plaintiff told his attorney he was not in a private room and his attorney directed Plaintiff to let her speak to an officer. Id. at 3-4. Defendant Engles (“Engles”) spoke with Plaintiff’s attorney and told her that no private room available. Id. at 4. Engles told Plaintiff’s attorney that she could schedule a private room for a later time. Id. Plaintiff’s attorney set up a phone call for the following day at 9:00 a.m. Id. Plaintiff had the phone call with his attorney the following morning. Id. However, after only approximately twenty-five to thirty minutes, Defendant Dequaine knocked on the door, giving him the signal to end his call. Plaintiff needed to end the call because another inmate was scheduled to use the private telephone. Id. Plaintiff filed two grievances about this issue. Id. Officer Laurent responded that there is a thirty-minute time limit for attorney phone conferences. Id. Plaintiff searched the inmate handbook and asked other officers, but others had never heard of such a rule. Id. 2.3 Analysis The Court finds that Plaintiff’s complaint does not contain sufficient facts to allow him to proceed on a Sixth Amendment claim for interference with the right to counsel. Unreasonable restrictions that impede an inmate's ability to speak to his attorney can also violate the Constitution. Murphy v. Walker,

(7th Cir. 1995). For instance, “[t]he Sixth Amendment right to counsel would be implicated if plaintiff was not allowed to talk to his lawyer for [an] entire four-day period” following his arrest. Tucker v. Randall,

, 390–91 (7th Cir. 1991). But accepting Plaintiff’s allegations as true, he claims only that Defendants prevented him from speaking with an attorney for certain periods of time; he does not include any information about whether his attorney is for a civil or criminal matter. Additionally, Plaintiff includes no information as to whether Plaintiff was afforded the opportunity to meet with his counsel in person or whether he was allowed to have multiple thirty-minute phone calls per day. As currently pled, the Court does not find that Plaintiff’s allegations state a Sixth Amendment claim against Defendants for their interference with his right to counsel. The Court will allow Plaintiff the opportunity to file an amended complaint on or before August 30, 2023 to cure the deficiencies identified in this Order. When writing his amended complaint, Plaintiff should provide the Court with enough facts to answer the following questions: (1) Who violated his constitutional rights?; (2) What did each person do to violate his rights?; (3) Where did each person violate his rights?; and (4) When did each person violate his rights? Plaintiff’s amended complaint does not need to be long or contain legal language or citations to statutes or cases, but it does need to provide the Court and each Defendant with notice of what each Defendant allegedly did or did not do to violate his/her rights. The Court is enclosing a copy of its amended complaint form and instructions. Plaintiff must list all of the defendants in the caption of his amended complaint. He should use the spaces on pages two and three to allege the key facts that give rise to the claims he wishes to bring, and to describe which defendants he believes committed the violations that relate to each claim. If the space is not enough, Plaintiff may use up to five additional sheets of paper. The amended complaint takes the place of the prior complaint and must be complete, without reference to his prior complaint. Plaintiff 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,

(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.”

(citation omitted). If the amended complaint is received, it will become the operative complaint in this action, and the Court will screen it in accordance with 28 U.S.C. § 1915A. 3. CONCLUSION Accordingly, IT IS ORDERED that Plaintiff’s motion for leave to proceed without prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED; IT IS FURTHER ORDERED that the complaint fails to state a claim; IT IS FURTHER ORDERED that Plaintiff may file an amended complaint that complies with the instructions in this Order on or before August 30, 2023. If Plaintiff files an amended complaint by the deadline, the Court will screen the amended complaint under 28 U.S.C. § 1915A. If Plaintiff does not file an amended complaint by the deadline, the Court will dismiss this case based on his failure to state a claim in his original complaint and will issue him a “strike” under

(g); IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a blank prisoner amended complaint form and a copy of the guides entitled “Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro Se Litigants’ Common Questions,” along with this Order; IT IS FURTHER ORDERED that the agency having custody of Plaintiff shall collect from his institution trust account the $302.00 balance of the filing fee by collecting monthly payments from Plaintiff’s prison trust account in an amount equal to 20% of the preceding month’s income credited to Plaintiff’s trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with

(b)(2). The payments shall be clearly identified by the case name and number assigned to this case. If Plaintiff is transferred to another county, state, or federal institution, the transferring institution shall forward a copy of this Order along with his remaining balance to the receiving institution; and IT IS FURTHER ORDERED that a copy of this Order be sent to the officer in charge of the agency where Plaintiff is confined. Dated at Milwaukee, Wisconsin, this 9th day of August, 2023. BY THE COURT:

P. ge US. District Judge Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the Court. Prisoner E-Filing is mandatory for all inmates at Columbia Correctional Institution, Dodge Correctional Institution, Green Bay Correctional Institution, Oshkosh Correctional Institution, Waupun Correctional Institution, and Wisconsin Secure Program Facility. Plaintiffs who are inmates at all other prison facilities, or who have been released from custody, will be required to submit all correspondence and legal material to: Office of the Clerk United States District Court Eastern District of Wisconsin 362 United States Courthouse 517 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. If mail is received directly to the Court’s chambers, IT WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN THE CASE. Plaintiff is further advised that failure to timely file any brief, motion, response, or reply may result in the dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of Court of any change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS ACTION WITHOUT PREJUDICE.

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