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Torry v. J. Nickel's

United States District Court, W.D. Wisconsin

September 26, 2016

BOBBIE TORRY, Plaintiff,
J. NICKEL'S, M. MORGAN and KARI LLOYD, Defendants.



         Pro se plaintiff Bobbie Tony alleges that the defendants, all employees of the Wisconsin Department of Corrections ("DOC"), violated his First Amendment rights by retaliating against him for filing a lawsuit against other prison officials, as well as violated his Eighth Amendment rights by forcing him to sleep in a bug or ant-infested cell. Because Tony is incarcerated at Columbia Conectional Institution ("CO") and is seeking redress from a governmental employee, the Prison Litigation Reform Act ("PLRA") requires the court to screen his complaint and dismiss any portion that is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks money damages from a defendant who is immune from such relief. 28 U.S.C. § 1915A. For the reasons that follow, Tony's request for leave to proceed is denied.[1]


         All of plaintiff Bobbie Tony's claims relate to events that occurred at CCI. Defendant D. Morgan is the administrative captain of the DS1 and DS2 segregation units at CCI, and defendant J. Nickels was CCI's security director for all times relevant to Tony's complaint. Tony purports to sue each defendant in his or her individual capacity.

         In July 2010, Tony filed a lawsuit in this court, alleging that Sean Salter, a correctional officer at CCI, as well as other defendants, violated his due process rights. See Tony v. Salter, No. 10-cv-378-slc (W.D. Wis. July 9, 2010).[3] On January 4, 2011, a CCI financial specialist approved Tony for a legal loan and on February 9, 2011, this court granted Tony leave to proceed on his claim against Salter. Id. (dkt. #10). That same day, a letter was sent to Michael Meisner, then warden of CCI, informing him of Tony's obligation to pay the filing fee. Id. (dkt. #11).[4]

         Tony alleges that defendant Nickels and Morgan were aware of his lawsuit against Salter, again probably because of the letter to Meisner. Tony alleges that on October 11, and November 16, 2011, and February 10, 2012, he was asked to double up, by giving up his bed and sleeping on the floor. Tony further alleges that Nickels and Morgan allowed correctional officers to write Torry up for his refusal to sleep on the floor on these three dates, and subsequently defendant Morgan sentenced him to segregation for each of these conduct reports, ranging from 90 to 150 days. Torry challenges these disciplinary actions because CCI has "no written policies at all for putting any inmate on the floor." (Id. at ¶ 16.)

         Torry also alleges that while housed in DS1, on or about February 4, 2012, Torry was laying down in his bed, which is approximately 5 inches off of the floor, when he was bit multiple times by ants, resulting in a lump underneath his left eye, which he then reported to the health services unit.[5] Torry alleges that then-security director, defendant Nickels, and Morgan were both aware that CCI had an "extreme bug problem." (Id. at ¶¶ 18, 23.)


         Construing the allegations in the complaint in the light most favorable to plaintiff, it appears Torry seeks to bring a First Amendment retaliation claim and an Eighth Amendment conditions of confinement claim against both defendants. The court considers each claim in turn.

         I. First Amendment Retaliation

         Tony alleges that each defendant learned of his lawsuit against another correctional officer at CCI and then took steps to retaliate against him in violation of his First Amendment rights by: ordering him to double up, including sleeping on the floor, and disciplining him when he refused; and making him sleep in bug infested conditions at least once. "An act taken in retaliation for the exercise of a constitutionally protected right violates the Constitution." DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000).

         To state a claim for retaliation, a plaintiff must identify (1) the constitutionally protected activity in which he was engaged; (2) one or more retaliatory actions taken by each defendant that would deter a person of "ordinary firmness" from engaging in the protected activity; and (3) sufficient facts to make it plausible to infer that the plaintiff's protected activity was one of the reasons defendants took the action they did against him. Bridges v. Gilbert, 557 F.3d 541, 556 (7th Cir. 2009). As for the first element, it is well established that filing a lawsuit complaining of prison policies constitutes protected activity. See Carter v. Radtke, No. 10-cv-510-wmc, 2014 WL 5494679 (W.D. Wis. Oct. 30, 2014) (citing Bridges, 557 F.3d at 551-52). Moreover, being forced to sleep on the floor could deter a person of ordinary firmness from engaging in the protected activity of filing lawsuits. Plaintiff's claim, however, falters on the third element.

         Plaintiff alleges that defendants "probably" learned about his lawsuit against Salter from then Warden Meisner, who received a letter informing him of the filing fee amount due. This allegation, standing alone, is too attenuated for the court to infer that the filing of the lawsuit was one of the reasons defendants took the actions they did.

         Tony also fails to allege any facts to allow an inference that Meisner and Nickels were motivated by Tony's filing of the lawsuit against Salter in ordering him to double up and sleep on the floor. To the contrary, the facts alleged undercut such an inference. Tony was granted leave to proceed on his claim against Salter in February 2011, and Meisner was informed of this lawsuit at that same time. Tony, however, was not forced to sleep on the floor ...

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