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 #5); 28 U.S.C. §
1915(b)(4). However, Plaintiff filed motions 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 #7 and #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
incarcerated at Foxlake Correctional Institution
(“FCI”), where he was housed from March 11, 2014,
until January 24, 2017. (Docket #1 at 5). 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. In his view, he needs constant
access to toilet facilities on demand to avoid the
possibility of incontinence. Id.
case, Plaintiff claims that the warden and other high-level
prison officials have created a policy of limiting toilet
access to inmates during their recreation time. Id.
at 5. The recreation facility contains both a gym and a music
room. Id. Recreation periods last one hour, and
inmates can stay for the whole hour or leave at the
thirty-minute mark. Id. If an inmate leaves the
recreation period for any reason, he may not return.
Id. Further, during recreation periods no inmate is
allowed access to a toilet. Id. Plaintiff was
notified of this policy at the time of his intake into FCI.
Id. Plaintiff decided not to attend recreation
periods at all because he knew he would be denied toilet
access and, if he had to leave to use the toilet, he could
not return. Id. Plaintiff says that he had a meeting
with Defendant Bruce Seidschlag (“Seidschlag”)
around June 2015, during which Seidschlag forcefully asserted
that no exception to the toilet-access ban during recreation
time would be made for Plaintiff despite his bowel condition.
Id. at 6. Plaintiff lodged an inmate grievance on
the matter in December 2016, but the grievance was dismissed
at each level of review. Id.
identifies several legal claims which he believes arise from
his factual allegations. These include: (1) deliberate
indifference to his need for toilet access, in violation of
the Eighth Amendment; (2) deprivation of his rights without
due process of law, in violation of the Fourteenth Amendment;
(3) denial of equal protection of the law, in violation of
the Fourteenth Amendment; and (4) denial of reasonable
accommodations for his bowel conditions, in violation of the
Americans with Disabilities Act (“ADA”) and/or
the Rehabilitation Act. Id. at 4.
Plaintiff's claims state a colorable basis for relief.
First, to state a claim under the Eighth Amendment, the
plaintiff's allegations must raise the inference that he
was denied the “minimal civilized measure of life's
necessities.” Rhodes v. Chapman, 452 U.S. 337,
347 (1981). Here, Plaintiff was, at worst, denied toilet
access for one hour each day, which does not raise
constitutional concerns. See Jaros v. Ill. Dep't of
Corr., 684 F.3d 667, 670-71 (7th Cir. 2012) (affirming
dismissal of Eighth Amendment claim where absence of grab
bars in shower did not deprive inmate of ability to wash but
only made it more difficult). In fact, Plaintiff was only
denied toilet access if he chose to attend recreation time,
which he says he did not do. In reality, although he mentions
the Eighth Amendment in passing in his complaint, it appears
that Plaintiff's true claim is that his disabilities
should have been better accommodated. See Strominger v.
Brock, 592 F. App'x 508, 511 (7th Cir. 2014) (on
claim that shower chairs should have been provided,
“the record suggests at most not that [the plaintiff]
was denied life's necessities but only that he did not
receive the level of accommodation that he
Plaintiff fails to state a claim for deprivation of due
process of law. To the extent he believes that he was denied
due process by being subjected to the bathroom ban, this
claim must fail because he was notified of the policy from
the very start of his incarceration at FCI and was permitted
to (and did) object to it. Dusenbery v. United
States, 534 U.S. 161, 167 (2002) (observing that
procedural due process generally requires only “notice
and an opportunity to be heard”). Further, to the
extent Plaintiff complains that his inmate grievances were
erroneously denied, he has no due process right to gain
relief through the grievance process. Owens v.
Hinsley, 635 F.3d 950, 953 (7th Cir. 2011)
(“Prison grievance procedures are not mandated by the
First Amendment and do not by their very existence create
interests protected by the Due Process Clause, and so the
alleged mishandling of [the plaintiff's] grievances by
persons who otherwise did not cause or participate in the
underlying conduct states no claim.”). Plaintiff states
no due process claim where he merely files a grievance and
disagrees with the outcome. See Conyers v. Abitz,
416 F.3d 580, 586 (7th Cir. 2005). Thus, no due process claim
arises from Plaintiff's allegations.
Plaintiff's equal protection claim cannot proceed because
the Supreme Court has not recognized individuals with bowel
diseases, like Plaintiff, as constituting a suspect class
under the Fourteenth Amendment. See Mlaska v.
Schicker, Case No. 15-cv-00918-MJR, 2015 WL 6098733, at
*11 (S.D. Ill. Oct. 16, 2015) (finding that group of inmates
with a certain type of medical condition did not constitute a
suspect class). Where a non-suspect class is implicated in
such a claim, prison administrators are constitutionally
entitled to treat prisoners differently “as long as the
unequal treatment is rationally related to a legitimate
penological interest.” Flynn v. Thatcher, 819
F.3d 990, 991 (7th Cir. 2016). A concern for security and
order during recreation time, including keeping an eye on
inmates moving freely about during recreation, could have
rationally animated the ...