United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2) AND
SCREENING PLAINTIFF’S AMENDED COMPLAINT
PAMELA PEPPER, United States District Judge.
plaintiff, a state prisoner, filed a pro se
complaint under 42 U.S.C. §1983, alleging that the
defendants at the Oshkosh Correctional Institution and the
Columbia Correctional Institution violated his civil rights.
This order resolves the plaintiff’s motion for leave to
proceed in forma pauperis and screens the
IN FORMA PAUPERIS STATUS
Prison Litigation Reform Act (“PLRA”) applies to
this action because the plaintiff filed his complaint while
incarcerated. 28 U.S.C. §1915. The PLRA allows a court
to grant an incarcerated plaintiff the ability to proceed
with his lawsuit without pre-paying the civil case-filing
fee, as long as he meets certain conditions. One of those
conditions is a requirement that the plaintiff pay an initial
partial filing fee. 28 U.S.C. §1915(b). Once the
plaintiff pays the initial partial filing fee, the court may
allow the plaintiff to pay the balance of the $350 filing fee
over time, through deductions from his prisoner account.
Id. On October 5, 2015, the court assessed an
initial partial filing fee of $137.64. Dkt. No. 6. The
plaintiff paid that amount on November 3, 2015. Accordingly,
the court will grant the plaintiff’s motion for leave
to proceed in forma pauperis and will allow the
plaintiff to pay the balance of the $350 filing fee over time
from his prisoner account, as described at the end of this
SCREENING OF PLAINTIFF’S AMENDED COMPLAINT
Standard for Screening Complaints
PLRA requires federal courts 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 may dismiss an action or portion
thereof if the claims alleged are “frivolous or
malicious, ” fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. §1915(e)(2)(B).
state a claim under the federal notice pleading system,
plaintiffs must 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 need not plead specific
facts, and need only provide “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)). “Labels and conclusions” or a
“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
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The
factual allegations must “raise a right to relief above
the speculative level, ” and when accepted as true,
must state a claim that is “plausible on its
face.” Twombly, 550 U.S. at 555;
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Iqbal, 556 U.S. at 679. First, the court
determines whether the plaintiff’s legal conclusions
are supported by factual allegations. Id. Legal
conclusions not supported by facts “are not entitled to
the assumption of truth.” Id. Second, the
court determines whether the well-pleaded factual allegations
“plausibly give rise to an entitlement to
relief.” Id. The court gives 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)).
context of a §1983 claim, the 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 the color of state law. Buchanan-Moore v.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009)(citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004). A suit seeking monetary
damages under §1983 must further allege that the
defendants were personally involved in the constitutional
deprivation. Matz v. Klotka, 769 F.3d 517, 527 (7th
Facts Alleged in the Proposed Complaint
October 2012, the plaintiff was an inmate at the Oshkosh
Correctional Institution (“OCI”). Dkt. No. 1 at
¶ 8. OCI Lieutenant Eric Norman gave the plaintiff a
conduct report, because Norman received information that the
plaintiff’s fiancée, Marie Enzell, planned to
smuggle drugs into the prison during her October 13, 2012
visit with plaintiff. Id. at ¶¶ 8-11. On
October 13, 2012, Norman and OCI Lieutenant R.
Smith removed the plaintiff from general
population and placed him in segregation. Id. at
¶ 12. The officers’ investigation, which included
reviewing the plaintiff’s phone calls, had revealed
that the plaintiff’s fiancée would be visiting
the plaintiff on October 13, 2012. Id. at ¶ 11.
Enzell did, in fact, arrive at OCI on that day; OCI staff
intercepted her in the lobby and determined that she
possessed marijuana and K2. Id. at ¶ 13.
along with OCI Lieutenant Tony (who is not a defendant in
this case), informed the plaintiff that they had detained his
fiancée because they found her with drugs.
Id. at ¶ 13. The plaintiff alleges that Norman
and Lieutenant Smith “used coercive threats of
prolonged assignment in the Segregation building at [OCI],
prosecution . . . in the Criminal Court of Enzell and Moseby
and other tactics to convince Moseby to cooperate” in
an investigation of drug use and dealing in OCI. Id.
at ¶ 14. The plaintiff agreed, and he provided the
officers with names of other inmates who were involved in the
drug trafficking. Id. at ¶ 15. Norman and
Lieutenant Smith did not believe that the plaintiff had been
sufficiently forthcoming with the information he provided.
Id. at ¶¶ 15-16. The plaintiff alleges
that as a result, the officers informed other inmates in
segregation that the plaintiff had “cooperated”
with prison staff, thereby identifying him as a
thereafter, other inmates in segregation began threatening
the plaintiff with physical harm. Id. The plaintiff
wrote to OCI Warden Judy Smith, complaining about Norman and
Lieutenant Smith and the subsequent threats from other
segregation inmates. Id. at ¶ 19. Warden Smith
responded that the plaintiff should address the issue with
the Disciplinary Hearing Committee. Id.
days after Norman and Lieutenant Smith decided that the
plaintiff wasn’t being forthcoming, the plaintiff was
visited in his cell by a social worker. Id. at
¶ 38. The social worker told him that his custody level
was going to be increased from medium to maximum.
Id. at ¶ 39. On November 16, 2012, the
plaintiff appeared before the Program Review Committee
(“PRC”) for the re-classification hearing.
Id. at ¶ 40. Lieutenant Smith was one of the
committee members. Id. The plaintiff alleges that
Smith gave the PRC coordinator false information about the
plaintiff’s drug trafficking at two different
institutions and his past conduct reports. Id. At
the conclusion of the hearing, the PRC decided that the
plaintiff’s classification should be increased from
medium to maximum, and that he should be transferred to
Columbia Correctional Institution (“CCI”).
Id. at ¶ 45.
plaintiff alleges that the decision to transfer him to CCI
was problematic. He explains that in 2007 (some five years
before the events described above), while he was incarcerated
at CCI, he was the target of a gang assault, which
“resulted in a physical altercation with Michael
Alexander, another prisoner, who tried to recruit Moseby,
then 22 years old, into a prison gang.” Id. at
¶ 42. At that time, the Department of Corrections
(“DOC”) issued a Special Placement Need
(“SPN”), requiring the plaintiff to be kept
separate from Alexander, and the DOC transferred the
plaintiff to Waupun Correctional Institution. Id. at
¶ 43. The PRC at CCI issued its decision on June 21,
2007, which included the statement that the plaintiff
“ha[d] some issues with other inmates here at CCI
(would not elaborate).” Id. at ¶ 41.
the 2007 SPN requiring the plaintiff to be separated from
Alexander, the OSCI PRC recommended increasing the
plaintiff’s custody status from medium to maximum, with
a transfer to CCI. Id. at ¶ 45. The PRC assured
the plaintiff that Alexander was no longer incarcerated at
plaintiff remained in segregation at OCI from his placement
there in October 2012 until February 2013. Id. at
¶ 23. The plaintiff alleges that the segregation unit
had insufficient insulation and ventilation, and that the
inmates housed there were subjected to “extreme
fluctuating temperatures.” Id. at ¶ 12.
The plaintiff also alleges that there were “extremely
cold temperatures” in the segregation unit.
Id. at ¶ 20. In January 2013, another inmate
plugged up the toilet in that inmate’s cell, which
caused water to overflow the toilet, run out of the cell, and
flow into the corridor. Id. at ¶¶ 25-26.
The toilet water flowed into the plaintiff’s cell; his
canvas shoes, socks and pants hems became wet as a result.
Id. at ¶ 26. When the plaintiff requested dry
clothing, dry shoes, and cleaning materials to sanitize his
cell, OCI Correctional Officers Kraft and Borkowski (who are
not defendants in this case) denied his request. Id.
at ¶ 27. The contaminated water remained in the
plaintiff’s cell for approximately five hours; even
then, third-shift staff put blankets and towels in front of
the plaintiff’s door to keep water from coming back
into the cell. Id. at ¶ 29. Two weeks later,
the plaintiff told the Health Services Unit staff that he had
developed a fungus under the toenail of his right big toe,
which discolored his toenail and caused him pain and
irritation for some three months. Id. at ¶ 34.
January 1, 2013, the plaintiff filed an offender complaint
regarding the conditions of his segregation cell.
Id. at ¶ 28. OCI complaint examiner Theresa
Murphy (who is not a defendant in this case) recommended
dismissing the complaint (finding that there wasn’t
much water and that it was just water, not contaminated
water). Id. at ¶ 31. Warden Smith dismissed the
complaint eight days later, without conducting an
“independent investigation.” Id. at
he was in the segregation unit at OCI, the plaintiff also
sent an “interview information request” to Warden
Smith, alleging that the temperature in the segregation unit
was “icy” and cold. Id. at ¶ 35.
Warden Smith instructed the plaintiff to send the request to
the segregation supervisor, but did nothing herself.
Id. The plaintiff alleges that the cold temperatures
“often caused numbing, pain and a tingling sensation of
[his] fingers and toes, and caused sleeplessness for days at
a time.” Id. at ¶ 36.
February 7, 2013, the DOC transferred the plaintiff to CCI.
Id. at ¶ 50. Although he’d been assured
that Michael Alexander was no longer housed at CCI, the
plaintiff saw inmate Alexander and “a number of other
prisoners from Alexander’s clique, ” and the
“animosity” from 2007 resumed; the plaintiff
alleges that it was fueled by rumors that the plaintiff had
been an informant at OCI. Id. Over the next nine
months, the plaintiff wrote to CCI Warden Michael
Dittman’s office, CCI Security Director Weber, CCI
Captain Don Morgan, CCI Captain Keller, and CCI Lieutenant
Mike Morrison, notifying them that in 2007, during his last
stint at CCI, he’d been in a fight with Alexander.
Id. at ¶ 51. The plaintiff told these
individuals that Alexander “was affiliated with”
a gang that had tried to recruit him, and that Leshawn
Benson, who was considered to be one of the ...