United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Jermel Jones, who is currently serving a state prison
sentence at Waupun Correctional Institution, filed a pro
se complaint under 42 U.S.C. § 1983, alleging that
his civil rights were violated while he was incarcerated at
Racine Correctional Institution (RCI). This matter comes
before the court on Jones' motion for leave to proceed
without prepayment of the full filing fee. ECF No. 2. Jones
is required to pay the $350.00 statutory filing fee for this
action. See 28 U.S.C. § 1915(b)(1). If a
prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Jones has filed a certified copy of his prison trust account
statement for the six-month period immediately preceding the
filing of his complaint, as required under 28 U.S.C. §
1915(a)(2), and has been assessed and paid an initial partial
filing fee of $1.35. His motion for leave to proceed without
prepaying the filing fee will be granted. Also before the
court are several motions for extension of time to pay the
initial partial filing fee and for leave to pay the initial
partial filing fee from Jones' release account. ECF Nos.
9, 10, 11, 13. Because the court has received Jones'
initial partial filing fee, these motions will be denied as
court is 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).
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. 28 U.S.C. §
1915A(b). A claim 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); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
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). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's 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 § 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 the color of state law. Buchanan-Moore v.
Cty. of Milwaukee, 570 F.2d 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).
complaint alleges that Defendant Ryan McClain, a correctional
officer at RCI, violated the Eighth Amendment's bar on
cruel and unusual punishment by using excessive force against
him during an incident that allegedly occurred on August 23,
2017, while Jones was incarcerated at RCI. He alleges that
McClain approached his cell during dinner that night, at
which time Jones said that he intended to tie a towel around
his own neck if McClain did not give him his dinner tray.
According to Jones, “McClain then said he will spray me
and I told him you can't spray me since I don't have
the towl [sic] around my neck. . . . McClain then said you
want a [sic] bet. And I said yes. . . . McClain then open[ed]
up my foodport trap and sprayed me in the face . . . .”
ECF No. 1 at 2. Jones alleges that being sprayed with an
incapacitating agent caused him to have an asthma attack,
which required that he be rushed to the hospital. He further
alleges that McClain “knew that he was not suppose[d]
to spray me unless I pose[d] a threat to myself or to him,
” knew that Jones has asthma, and knew that spraying
Jones with an incapacitating agent could cause an asthma
attack. Id. at 3.
for both excessive force and deliberate indifference fall
under the umbrella of the Eighth Amendment's prohibition
on cruel and unusual punishment, which bars
“unnecessary and wanton infliction of pain, ”
particularly when “totally without penological
justification.” Hope v. Pelzer, 536 U.S. 730,
737 (2001). Specifically, the inquiry in claims involving
allegations of excessive force by prison officials against an
inmate is whether the prison official inflicted an injury
“maliciously and sadistically for the very purpose of
causing harm.” See Hudson v. McMillian, 503
U.S. 1, 6 (1992); Whitley v. Albers, 475 U.S. 312
(1986). Thus, the infliction of even a relatively minor or de
minimis injury can constitute a violation of the Eighth
Amendment's prohibition of “cruel and
unusual” punishment if it is done maliciously.
Hudson, 503 U.S. at 9 (“When prison officials
maliciously and sadistically use force to cause harm,
contemporary standards of decency always are violated. . . .
This is true whether or not significant injury is
subjective standard for excessive force claims makes it
difficult to rule out Eight Amendment excessive force claims
at the screening phase, particularly in light of the
liberality with which the court must construe Jones'
complaint. Here, Jones alleges that McClain responded to his
threat of self-harm-but not any action in furtherance of
it-by spraying Jones with an incapacitating agent, despite
knowing about Jones' asthma. The court therefore
concludes that Jones may proceed against McClain on the
excessive force claim.
the court finds that Jones may proceed on his claim against
McClain for using excessive force.
IS THEREFORE ORDERED that the plaintiff's motion
for leave to proceed in forma pauperis (ECF No. 2)
IS FURTHER ORDERED that the plaintiff's motions
for extension of time to pay the initial partial filing fee
and for leave to pay the initial partial filing fee from his
release account (ECF Nos. 9, 10, 11, 13) are
DENIED as moot.
IS FURTHER ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this court, copies of the plaintiff's complaint and
this order are being electronically sent today to the
Wisconsin Department of Justice for service on the state
IS ALSO ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice
and this court, the defendant shall file a responsive
pleading to the complaint within sixty (60) days of receiving
electronic notice of this order.
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from his institution trust account
the $348.65 balance of the filing fee by collecting monthly
payments from the plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to the prisoner's trust account and forwarding
payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If the
plaintiff is transferred to another institution, the
transferring institution shall forward a copy of this Order
along with plaintiff's remaining balance to the receiving
IS ALSO ORDERED that copies of this order be sent to
the officer in charge of the agency ...