United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
plaintiff, Alexandria Marie Walker, is a Wisconsin state
prisoner representing herself She filed a complaint alleging
that the defendant verbally abused her. This matter comes
before me on Walker's petition to proceed without
prepayment of the filing fee (in forma pauperis) and
to screen the complaint.
has been assessed and paid an initial partial filing fee of
$1.52. See 28 U.S.C. § 1915(b)(1). She may
therefore continue to proceed without prepayment of the full
filing fee. I will direct collection of the rest of the
filing fee as explained at the end of this order.
OF REVIEW FOR SCREENING COMPLAINT
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). I 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. § 1915A(b).
state a cognizable claim under the federal notice pleading
system, Walker is required to provide a "short and plain
statement of the claim showing that [she] is entitled to
relief[.]" Fed.R.Civ.P. 8(a)(2). Walker need not plead
specific facts and her 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)). However, a complaint
that offers mere "labels and conclusions" or a
"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).
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) she was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon her 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). I am obliged
to give Walker's/?ro 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,
is incarcerated at the Taycheedah Correctional Institution.
She is suing Officer Benarek.
alleges that on February 17, 2017, during medication pass
while she was drinking her Miralax, Officer Benarek gave her
"a disgusting kind of look." (ECF No. 1 at 3.) When
Walker finished drinking her Miralax, Officer Benarek told
her that she looked like she was going to throw up. Walker
responded that she was fine and that it (presumably, the
Miralax) tasted like water. Then Officer Benarek told Walker,
"I bet you if I would hit you in the stomach you would
throw up." (Id.) Walker looked at the nurse who
was standing nearby and she asked Officer Benarek why he
would say something like that. He responded that he was only
kidding. The nurse looked at Officer Benarek, shook her head,
and said, "Dude this is one of those times you
shouldn't say what you were thinking."
(Id.) Officer Benarek and the nurse then moved on to
the next cell block to pass out medication.
alleges that she was abused as a child and that Officer
Benark's comments traumatized her. She seeks monetary
damages and a no-nonsense policy for officers who verbally
verbal harassment by jail or prison guards does not rise to
the level of cruel and unusual punishment." Beal v.
Foster,803 F.3d 356, 358 (7th Cir. 2015); see also
DeWalt v. Carter,224 F.3d 607, 612 (7th Cir. 2000). On
the other hand, "[t]hreats of grave violence can
constitute cruel and unusual punishment under the Eighth
Amendment." Hughes v. Farris,809 F.3d 330, 334
(7th Cir. 2015) (citing Dobbey v. III. Dep't of
Corr.,574 F.3d 443, 445 (7th Cir. 2009)). In
Dobbey, the Seventh Circuit found that a threat
"can rise to the level of cruel and unusual
punishment." 574 F.3d at 445. The court concluded,
however, that a prison guard's alleged act of getting up
in the middle of a card game to hang a noose in the sight of
black prisoners, while other guards calmly continued the card
game, could not reasonably be taken seriously as a ...