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Banks v. Boughton

United States District Court, E.D. Wisconsin

June 20, 2017

TARENCE BANKS, Plaintiff,
v.
GARY BOUGHTON, et al., Defendants.

          ORDER DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 4), SCREENING COMPLAINT AND DISMISSING CASE

          HON. PAMELA PEPPER United States District Judge

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed a complaint, dkt. no. 1, along with a motion for leave to proceed without prepayment of the filing fee, dkt. no. 4. The court grants the motion to proceed without prepaying the filing fee, screens the complaint, and dismisses the case.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On October 24, 2016, the court ordered the plaintiff to pay an initial partial filing fee of $17.59. Dkt. No. 6. The plaintiff paid that fee on November 22, 2016. Accordingly, the court will grant the plaintiff's motion. The court will require the plaintiff to pay the remainder of the filing fee over time as set forth at the end of this decision.

         II. Review of the Plaintiff's Claim (“Screening” Order)

         The law requires the court 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). The court must dismiss a complaint, or part of it, if the plaintiff raises 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, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need 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)). A complaint that offers “labels and conclusions, ” however, 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. (quoting Twombly, 550 U.S. at 570). “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. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that the defendants: 1) deprived him of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); 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. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. The Plaintiff's Allegations

         The plaintiff has only one arm; his left arm was amputated after he suffered a shotgun wound.[1] During the events he describes in the complaint, he was incarcerated that the Wisconsin Secure Program Facility (“WSPF”) in Boscobel, Wisconsin. Dkt. No. 1 at 1.

         On June 15, 2015, the plaintiff wrote to the health services unit (HSU) at WSPF, because his arm was itching (he'd previously been housed at Dodge Correctional Institution; he'd reported the itching to the Dodge medical staff, who'd been “finding a way to do something about it.”). Id. at 2. In addition, the plaintiff needed help clipping his fingernails. Id. It appears that HSU referred him to an RN, who told him to talk to the Unit Manager social worker. They also advised him that they were considering the nail clipping concern, and would let him know. Id.

         On June 22, 2015, the plaintiff wrote to the security director and asked that WSPF provide him with the same accommodation for his arm that he had received at Dodge. Id. at 2; Dkt. No. 1-1 at 2. For example, the plaintiff asked that his floor be “scrubbed” (to make it less slippery) and that he be given a chair to use in the shower. Id. Defendant Kartman responded that the requested items were reviewed and some were determined a “security concern, ” and that security was “exploring alternatives.” Dkt. No. 1-1 at 2.

         The plaintiff filed an inmate complaint about the denial of the requested items. Dkt. No. 1 at 2. On July 20, 2015, the inmate complaint examiner (ICE) recommended the complaint be dismissed. Dkt. No. 1-1 at 3. The ICE explained that, while the requested items had been denied, the plaintiff had been provided “a personal caretaker to accommodate his needs in place of the denied property items.” Id.

         On July 1, 2015, the plaintiff filed another inmate complaint, asserting that his cell was not handicap accessible. Dkt. No. 1 at 2; Dkt. No. 1-1 at 8. The plaintiff requested that he be given a toilet paper roll holder, a mounted shower scrubber, and that his floor be “roughed up” to prevent slipping. Dkt. No. 1-1 at 8. The ICE recommended the complaint be dismissed because “Unit Supervisor Kool ha[d] contacted maintenance and the toilet paper roll holder and the cell floor will be completed as soon as possible.” Id. In addition, the scrubber request was being considered by security. Id.

         The plaintiff states that, on July 15, 2015, the Special Needs Committee denied his request for fitted sheets. Dkt. No. 1 at 2. In its notification of the denial, the committee instructed the plaintiff to refer his request “to the ADA.” Dkt. No. 1-1 at 10.

         On August 4, 2015, the plaintiff appealed the dismissal of his July 2015 inmate complaint. Dkt. No. 1-1 at 5. In reviewing the appeal, the corrections complaint examiner explained that WSPF had made changes to the plaintiff's inmate care plan since the July 2015 decision. Id. She explained that WSPF since had provided the plaintiff with a longer handled scrub bush at shower times (passed out daily and collected by staff after the plaintiff finishes showering), and had ordered a scrubber with suction cups to place on the plaintiff's sink so that he could wash his hand. Id. at 5, 11. She also stated that HSU scheduled the plaintiff for weekly assessments of his arm and his “need for assistance with bathing, lotion application, and nail clippings of finger nails on the right hand.” Id. Finally, she noted that “the prosthetic arm need has progressed to the referral stage but will still require final approval from the DOC medical director.” Id.

         In September 2015, the plaintiff slipped on the wet floor after taking a shower, hurting his ankle and back. Dkt. No. 1 at 2. The plaintiff filed an inmate complaint about how slippery his shower floor was. Dkt. No. 1-1 at 14. In affirming the complaint, the ICE noted that the plaintiff's cell floor had already been “roughed up” by maintenance; however, that solution appeared to be inadequate. Id. at 15. The ICE spoke to defendant Kool, who requested that maintenance explore other options. Id. Sometime later, WSPF added a non-slip floor mat to the plaintiff's shower area to lessen the likelihood of the plaintiff slipping during his showers. Id. The plaintiff complained that he did not believe the floor mat would be adequate and stated that he would prefer ‚Äúsand ...


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