United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who is incarcerated at the Wisconsin Secure Program Facility,
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 Plaintiff's
motion to proceed in forma pauperis. (Docket #2).
The Court originally assessed Plaintiff an initial partial
filing fee of 85 cents. (Docket #7); 28 U.S.C. §
1915(b)(4). However, Plaintiff filed a motion to waive
payment of the initial partial filing fee, arguing that he
has insufficient funds in his trust account and that prison
officials will not allow him to overdraft the account or take
a legal loan to pay the fee. (Docket #8).
the records initially presented to the Court suggested that
Plaintiff had the ability to pay an initial partial filing
fee, the Court credits his representations in his motion
that, in reality, he cannot. The Court therefore finds that
Plaintiff does not have the assets or means to pay the
initial partial filing fee originally assessed. Because the
Prison Litigation Reform Act mandates that a prisoner will
not be prohibited from bringing a civil action for the reason
that he lacks the assets and means to pay an initial partial
filing fee, 28 U.S.C. § 1915(b)(4), Plaintiff will be
granted a waiver of payment of the initial partial filing fee
in this case. However, he is still obligated to pay the full
filing fee pursuant to the statutory formula set forth in 28
U.S.C. § 1915(b)(2). See Id. § 1915(b)(1).
determined that Plaintiff need not pay the initial partial
filing fee, the Court next turns to screening his complaint.
The Court is required to screen complaints brought by
prisoners seeking relief against a governmental entity or an
officer or employee of a governmental entity. Id.
§ 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. Id. § 1915A(b).
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 Atl. 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. “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. The complaint allegations “must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555;
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 then “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); 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)).
alleges that the relevant events occurred while he was a
incarcerated at Foxlake Correctional Institution
(“FCI”), where he was housed from March 11, 2014,
until January 24, 2017. (Docket #1 at 4). Plaintiff claims he
has chronic ulcerative colitis as a complication of
Crohn's disease. Id. at 3. According to
Plaintiff, this condition means that he has to use the
restroom often and that the need to do so arises urgently and
without warning. Id. at 4. In his view, he needs
constant access to toilet facilities on demand to avoid the
possibility of incontinence. Id.
raises a litany of allegations against a large cast of
defendants, each of whom is involved in one or more discrete
episodes of alleged misconduct. To provide context for its
disposition below, the Court will explain each episode
briefly. First, Plaintiff claims that the warden and other
high-level prison officials have created a policy of limiting
toilet access to inmates during their one-hour recreation
time. Id. at 5. No exceptions were made for any
inmate. See Id. at 5-6. Plaintiff has refrained from
attending recreation because he believes he needs unfettered
access to a bathroom at all times. Id.
Plaintiff complains about policies applicable to daily
prisoner head counts. Id. at 7. The head count takes
15-20 minutes at a minimum and inmates are not permitted to
leave their cells until it is over. Id. Cells in the
general population areas, where Plaintiff was housed, do not
have toilets in them. Id. Plaintiff alleges that
although prison officials warned that toilet use must be
taken care of prior to a head count, he cannot do this; his
condition strikes without warning and has nothing to do with
how recently he has used the toilet. Id. As a
result, Plaintiff claims he has had to sneak out of his cell
during head count, against prison rules, to find a toilet.
Plaintiff complains of the unsafe condition of the prison
water supply. Id. He alleges that the water was
often brown, with a “putrid sulfuric odor to it.”
Id. To remedy this when it occurred, prison
officials would allow inmates to run faucets indefinitely to
clear out the contamination. Id. But this was not
possible in FCI's restricted housing unit
(“RHU”), where the plumbing system limits the
flow of water to short bursts. Id. at 9. Plaintiff
alleges that when he was housed in the RHU between December
12, 2016 and January 24, 2017, he lacked safe drinking water
for taking his medications. Id. at 9-11. He claims
that Defendants took no corrective action despite knowing the
effect that the newly installed plumbing system would have on
living conditions inside the RHU and despite his repeated
grievances submitted during this time frame regarding the
water problem. Id.
issue Plaintiff had regarding the RHU was the doubling up of
prisoners in the cells. Id. at 12. He complains that
the RHU cells are designed for one and that being doubled up
forced him to sleep on a mattress on the floor. Id.
Additionally, he worried that doubling up prisoners in the
RHU exposed one prisoner to punishment if his cellmate
decided to act out. Id. Further, it appears
Plaintiff sought a single cell for himself because of his
need to frequently use the toilet. Id. at 13.
Defendants nevertheless ignored his request not to be doubled
up in the RHU. Id. at 12-13. Moreover, at or around
this time, Defendants refused Plaintiff's request to be
moved to another facility that he believed could better
accommodate his bowel condition. Id. at 13.
next complaint stems from the temperature of the prison.
Id. at 13-14. Plaintiff claims his bowel condition
is aggravated by cold temperatures and that, despite knowing
this, prison officials allowed other inmates to keep the
prison doors and windows open when they pleased, regardless
of how cold it was outside. Id. Plaintiff believes
that prison officials should have been more accommodating of
his needs. Id. Further, Plaintiff states ...