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Walker v. Benarek

United States District Court, E.D. Wisconsin

June 7, 2017



          William C. Griesbach, Chief Judge

         The 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.

         Walker 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.


         I am 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).

         To 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).

         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, second, "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) 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, 106 (1976)).


         Walker is incarcerated at the Taycheedah Correctional Institution. She is suing Officer Benarek.

         Walker 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.

         Walker 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 abuse inmates.


         "[M]ost 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 ...

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