United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON District Judge.
Robert Ward, a prisoner at Columbia Correctional Institution,
has filed this pro se lawsuit against defendant Dane Kirk, a
correctional officer, alleging that he violated
plaintiff's constitutional rights by using unreasonable
and excessive force when he threw a bag of crackers that hit
plaintiff in the eye. Plaintiff has made an initial partial
payment of the filing fee in accordance with 28 U.S.C. §
1915(b)(1), so his complaint is ready for screening under 28
U.S.C. §§ 1915(e)(2) and 1915A. I conclude that
plaintiff cannot proceed on his claim at this time because he
has failed to adequately explain how he has been injured.
However, I will give plaintiff an opportunity to file an
amended complaint that states a viable claim.
complaint contains the following allegations, which, at this
stage and for present purposes, I accept as true and read in
the light most favorable to him. Perez v. Fenoglio,
792 F.3d 768, 774 (7th Cir. 2015).
27, 2016, plaintiff Robert Ward, a prisoner at Columbia
Correctional Institution in Portage, Wisconsin, was in his
cell during dinner time. He informed defendant officer Dane
Kirk that he was missing his juice packet from his meal, and
officer Kirk replied that he would bring one back shortly. A
few minutes later defendant Kirk approached plaintiff's
cell door and opened the trap to pass something into the
cell. Plaintiff put out his hand to receive what he was being
offered, and as soon as he touched it, defendant
“pulled back and the juice packet and a bag of crackers
split and broke and got everywhere.” Defendant
“became very upset and threw the bag of crackers into
[plaintiff's] trap on [his] cell and hit
[plaintiff's] eye. [Plaintiff] started to scream and
[defendant] said fuck this shit and walked away.”
Another officer, Lt. Wiltizius, arrived and told plaintiff
that he would be put on control status for trying to grab
defendant through the trap and pull him into his cell.
However, after viewing the video footage of the incident, Lt.
Wiltizius conceded that it did not appear that plaintiff had
in fact done any such thing. Plaintiff was not placed on
control status. Defendant was removed from his post for the
remainder of his time at Columbia Correctional Facility, and
was gone two weeks later. Plaintiff was seen by prison health
officials, who “flushed” his eye, and he is still
seeing an eye doctor for follow-up medical care. Plaintiff
states that he exhausted all administrative remedies and
brought this suit against defendant Kirk for
“unreasonable use of force while in prison.”
claim is governed by the Eight Amendment's cruel and
unusual punishments clause, which “prohibits the
‘unnecessary and wanton infliction of pain' on
prisoners.” Outlaw v. Newkirk, 259 F.3d 833,
837-38 (7th Cir. 2001) (quoting Hudson v.
McMillian, 503 U.S. 1, 5 (1992)). In cases alleging
unreasonable or excessive use of force,
the core judicial inquiry is whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm. A court should
examine a variety of factors in conducting this inquiry,
including the need for an application of force, the
relationship between that need and the force applied, the
threat reasonably perceived by the responsible officers, the
efforts made to temper the severity of the force employed,
and the extent of the injury suffered by the prisoner. With
regard to the last of these factors, while significant
injury is not required, a claim ordinarily cannot be
predicated upon a de minimis use of physical
DeWalt v. Carter, 224 F.3d 607, 619-20 (7th Cir.
2000) (citing Hudson, 503 U.S. at 7, 9-10) (internal
citations and quotations omitted) (emphasis added). Thus, not
every push, shove or “malevolent touch by a prison
guard” can give rise to an Eighth Amendment claim.
Hudson, 503 U.S. at 9. This court has noted that
“[i]n excessive force cases, an injury must be more
than trifling but prison officials are not free to inflict
pain without cause so long as they are careful to leave no
marks.” Wheeler v. Dep't of Corr., No.
03-C-576-C, 2003 WL 23100288, at *4 (W.D. Wis. Nov. 14, 2003)
(citing Williams v. Boles, 841 F.2d 181, 183 (7th
limited allegations about his injury do not state a claim
under this standard. Although there is no indication that
force was reasonably necessary to effect any legitimate
disciplinary purpose in this case, it is not clear that
defendant's throwing a bag of crackers constituted more
than a de minimis use of physical force, nor is it
clear what injury plaintiff suffered as a result. If
plaintiff believes that defendant's actions in fact
constituted an “unnecessary and wanton infliction of
pain” that caused him injury that was “more than
trifling, ” then he must provide the court with
allegations supporting such a claim. Outlaw, 259
F.3d at 837; Wheeler, 2003 WL 23100288, at *4.
therefore dismissing plaintiff's complaint without
prejudice, and giving him an opportunity to submit an amended
complaint that complies with the Federal Rules of Civil
Procedure and contains more detailed allegations. Plaintiff
may have until January 27, 2017 to do so. Specifically, if
plaintiff wishes to proceed with this claim, he should
identify and explain what kind of pain or injury he suffered
as a result of being hit in eye with the bag of crackers. He
should also provide any additional factual allegations
regarding what exactly defendant did to him, how and why he
did it, and any other information or circumstances that might
be relevant to understanding the incident that took place.
Plaintiff is advised that if he files an amended complaint,
and wishes to proceed with this lawsuit, his amended
allegations must state a claim under the legal standards for
excessive force explained above.
Plaintiff Robert Ward's complaint, dkt. #1, is DISMISSED
without prejudice for failure to provide notice of his ...