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Adell v. Hepp

United States District Court, E.D. Wisconsin

March 14, 2017

MARK ANTHONY ADELL, Plaintiff,
v.
RANDALL HEPP, CHRIS KRUEGER, BRUCE A. SIEDSCHLAG, CATHY JESS, MAGGIONCALDA, CAPTAIN CONGDON, MARK SCHOMISCH, OFFICER PULVER, HOLLY MEIER, C. WHITMAN, M. PATTEN, J. BOVEE, JAMES LABELLE, BRAD HOMPE, CHRIS O'DONNELL, LT. MESSER, SGT. WIERSMA, SGT. ST. LOUIS, LT. RHODES, GEORGE COOPER, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         Plaintiff, 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).

         Although 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).

         Having 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).

         A claim 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. 2011).

         To 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.

         In 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.

         To 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)).

         Plaintiff 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.

         Plaintiff 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.[1] 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.

         Second, 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. Id.

         Next, 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.

         Another 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.

         Plaintiff's 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 ...


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