United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
plaintiff and prisoner John Michael Marker has submitted a
complaint about an incident that occurred in April 2017 at
the Stanley Correctional Institution, where plaintiff was
incarcerated. (Plaintiff is now at the Columbia Correctional
Institution.) Plaintiff has submitted an initial partial
payment of the filing fee as required by 28 U.S.C. §
1915(b)(1), so his complaint is ready for screening under 28
U.S.C. §§ 1915(e)(2) and 1915A.
alleges that he found three staples in food that was served
to him at the Stanley prison. He did not discover the staples
until he bit down on one of them, causing both bleeding and
“severe pain.” After this incident, plaintiff
became afraid that an employee at the prison “was
trying to hurt or kill” him, so he switched to a
“liquid and fresh fruit diet” until he was
transferred to a different prison at the end of the month.
does not summarize his claims, but I understand him to be
suing the individual or individuals responsible for placing
staples in his food. (Although plaintiff lists three John
Does in the caption of his complaint, he does not provide any
basis for inferring that three people were involved.) He does
not identify a legal theory in his complaint, but he checked
the box on the complaint form stating that he is suing under
only potential claim under federal law of which I am aware
would arise under the Eighth Amendment to the United States
Constitution, which prohibits cruel and unusual punishment.
In applying that general standard, the Supreme Court has held
that prison officials may violate the Eighth Amendment if
they knowingly subject a prisoner to a substantial risk of
serious harm or if they harm a prisoner with malicious
intent. Farmer v. Brennan, 511 U.S. 825, 829 (1994);
Hudson v. McMillan, 503 U.S. 1, 6 (1992). Thus, a
plaintiff cannot prevail on an Eighth Amendment claim unless
he shows that a defendant intended to harm him or knew of a
strong likelihood that harm would occur.
does not state a claim under either standard. Plaintiff
admits in his complaint that he has no basis for believing
that any employee at the prison was trying to harm him or
knew that harm was likely. He does not identify any employees
who had threatened him or even had a reason to harm him and
he does not identify any other suspicious incidents that
occurred at any time while he was incarcerated at the Stanley
prison, either before or after he found staples in his food.
In fact, plaintiff does not allege any facts
supporting a view that anyone, let alone a prison employee,
placed the staples in his food intentionally.
seems to want the court to infer that a prison staff member
was trying to hurt him from the mere fact that staples
appeared in his food. However, even at the pleading stage, a
plaintiff must include enough facts to raise his claim above
the level of speculation. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). There are many
explanations for the staples that have nothing to do an
intent to harm. Olson v. Bemis Co., 800 F.3d 296,
304 (7th Cir. 2015) (“An allegation that gives rise to
an obvious alternative explanation is not plausible.”)
(internal quotations omitted). Moreover, it may well be that
the staples appeared in his food because of the actions of
the food manufacturer or distributor rather than a prison
course, staples do not belong in food and, for that reason,
it might be reasonable to infer at the pleading stage that
prison staff acted negligently in failing to
properly screen plaintiff's food before serving him.
However, negligence is a state law claim and a federal
court's authority to consider a state law claim is
limited. Under 28 U.S.C. § 1332, a federal court can
exercise jurisdiction over a state law claim when the
plaintiff and defendants are citizens of different states and
there is more than $75, 000 at stake. In this case, it
appears that all parties are citizens of Wisconsin, so I
cannot exercise jurisdiction under § 1332. If plaintiff
wishes to sue prison officials for negligence, he will have
to do so in state court.
Plaintiff Jonah Michael Marker's Eighth Amendment claim
is DISMISSED for plaintiff's failure to state a claim
upon which relief may be granted.
accordance with 28 U.S.C. § 1367(c)(3), I decline to
exercise supplemental jurisdiction over plaintiff's state
clerk of court is directed to enter judgment accordingly.
Because I am dismissing plaintiff's state law claim for
lack of jurisdiction rather than for failure to state a claim
upon which relief may be granted, I have not dismissed the
“action” for one of the reasons listed in 28