United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
plaintiff, who is incarcerated at Dodge Correctional
Institution, filed a pro se complaint under 42
U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). This matter comes before the Court on
the plaintiff's motion to proceed in forma
pauperis. (Docket #2). The prisoner's trust fund
account statement reveals that he lacks the funds to pay an
initial partial filing fee. 28 U.S.C. § 1915(b)(4).
Court is required 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 must dismiss a complaint or portion thereof if the
prisoner has raised 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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant 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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). However, a complaint that
offers “labels and conclusions” or
“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
555). To state a claim, a complaint must contain sufficient
factual matter, accepted as true, “that is plausible on
its face.” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The complaint allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
(citation omitted); Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. § 1983, a
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 color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Village of North Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is
obliged to give the plaintiff's 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)).
plaintiff alleges that on July 10, 2016, he was booked into
the Milwaukee County Jail (the “Jail”) and placed
in the special needs unit on suicide watch. (Docket #1 at 2).
The cell had feces on the wall and the plaintiff's
mattress was exposed to urine. Id. This caused the
plaintiff to suffer an “outbreak” of some type on
his skin, causing rashes and boils. Id. He further
alleges that he suffered numerous spider bites. Id.
plaintiff alleges that he told Officers Blue
(“Blue”) and Brooks (“Brooks”) about
the conditions but does not say what they did in response.
Id. He also informed Nurse Gray (“Gray”)
of his medical problems, but again fails to relate her
response. Id. The plaintiff filed a grievance on the
issue, and was told that he should have mentioned the
cell's unclean condition as soon as he was placed in it,
and Jail staff would have cleaned it. Id.; (Docket
#1-1). He alleges that the defendants failed “to uphold
Wisconsin state statute 302.37(1)(a)(B), ” and that his
cell's condition amounted to cruel and unusual
punishment. (Docket #1 at 4).
than Blue, Brooks, and Gray, none of the other defendants
have any factual allegations tied to them. Without such
allegations, they cannot remain as defendants in this
lawsuit. Even as to Blue, Brooks, and Gray, the
plaintiff's allegations fall short of stating viable
claims. The Eighth Amendment governs claims regarding
unsanitary prison conditions, imposing liability on prison
officials when “(1) there is a deprivation that is,
from an objective standpoint, sufficiently serious that it
results ‘in the denial of “the minimal civilized
measure of life's necessities, ”' and (2) where
prison officials are deliberately indifferent to this state
of affairs. Gray v. Hardy, 826 F.3d 1000 (7th Cir.
2016) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994)). While the plaintiff's allegations would
certainly pass the screening threshold as to the first
element, they offer nothing on the second. The plaintiff is
silent on what Blue and Brooks did after he told them about
his cell conditions.
similarly fails to establish Gray's liability. It appears
the plaintiff is dissatisfied with Gray's medical care.
An Eighth Amendment claim for inadequate medical care
requires proof that “[the [plaintiff] had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating [him]; and (3) this indifference caused [him] some
injury.” Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010). Assuming without deciding that the first and
third elements are adequately pleaded, the plaintiff states
nothing on Gray's response to being told about his
medical problems or his subsequent course of treatment.
Wisconsin Supreme Court has held that negligence claims may
be brought for violations of duties established by Chapter
302 of the Wisconsin statutes. Swatek v. Cnty. of Dane et
al., 531 N.W.2d 45, 57 (Wis. 1995). The Court again
assumes, without deciding, that the plaintiff appropriately
pleaded such a claim as to any defendant. Even had he done
so, the claim is based purely upon state law. Because the
plaintiff states no viable federal claims, the Court would
have no jurisdiction of a state law negligence claim.
See 28 U.S.C. §§ 1331-1332.
Court finds that the plaintiff has failed to state any viable
claims for relief. It will nevertheless provide him with an
opportunity to amend his complaint. If the plaintiff elects
to proceed, he must file an amended complaint curing the
deficiencies in the original complaint as described herein.
The amended complaint must be filed on or before
February 2, 2017. Failure to file an amended
complaint within this time period may result in dismissal of
this action without further notice. The plaintiff is advised
that the amended complaint must bear the docket number
assigned to this case and must be labeled “Amended
Complaint.” The plaintiff is further advised that a
successful complaint alleges “the who, what, when,
where, and how: the first paragraph of any newspaper
story.” See DiLeo v. Ernst & Young, 901
F.2d 624, 627 (7th Cir. 1990).
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, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that
in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
see also Pintado v. Miami-Dade Housing Agency, 501
F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's averments against his
adversary.'”) (quoting Dr ...