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.
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. 8, 9, 10, 12, 13. Because the court has received
Jones' initial partial filing fee, these motions will be
denied as moot. Additionally, Jones has filed a motion to
appoint counsel. ECF No. 7. For the reasons set forth below,
this motion will be denied without prejudice.
Screening of the Complaint
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 Defendants Officer Dalagarza, Captain
Slayton, and Supervisor Mayer, all correctional officers at
RCI, violated the Eighth Amendment's bar on cruel and
unusual punishment by using excessive force against him on
September 2, 2017, while he was confined at RCI. According to
the complaint, Jones was resting his hand in the food-port on
his cell door when Dalagarza and another officer approached
his cell. When Dalagarza asked Jones to bring his hand all
the way inside the cell so that Dalagarza could close the
food-port trap door, Jones refused. Jones alleges that
Dalagarza then kicked his hand, injuring it. In response,
Slayton allegedly came to the cell, asked what happened, and
called for a nurse, who gave Jones ice and a sling for his
hand. During a subsequent shift, Mayer allegedly met with
Jones outside of his cell, asked Jones to give a statement on
the incident, and told Jones that Mayer would have to report
the incident to the warden. Jones further alleges that a
different sergeant later told Jones that “Mayer told
[the sergeant] that he spoke with Captain Slayton and Slayton
informed him he believe[d] Officer Dalagarza did kick”
Jones. ECF No. 1 at 3.
for excessive force fall under 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 Dalagarza kicked him and
injured his hand in response to Jones' refusal to comply
with Dalagarza's request. The court therefore concludes
that Jones may proceed against Dalagarza on the excessive
force claim. However, Jones makes no allegation that Slayton
or Mayer used force against him in any way. To the contrary,
he alleges not only that Slayton and Mayer both responded
promptly to Dalagarza's alleged use of excessive force
but also that they believed Jones' allegations. In the
absence of any claim that Slayton or Mayer used force against
Jones, his claims against them will be dismissed.
Accordingly, the court finds that Jones may proceed on his
Eight Amendment claim against Dalagarza for using excessive
force, but Slayton and Mayer will both be dismissed from this
Motion to Appoint Counsel
has also filed a motion to appoint counsel to represent him
in this matter. ECF No. 7. Civil litigants do not have a
constitutional or statutory right to appointed counsel.
Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007)
(en banc); Zarnes v. Rhodes, 64 F.3d 285, 288 (7th
Cir. 1995). But district courts do have discretion to recruit
attorneys to represent indigent parties in appropriate cases.
28 U.S.C. § 1915(e)(1). Before a district court will
recruit counsel, however, litigants must, as a threshold
matter, make a reasonable attempt to secure private counsel
on their own. Pruitt, 503 F.3d at 654. If the
litigant has done so, the court must then address the
following question: “given the difficulty of the case,
does the plaintiff appear competent to litigate it
himself?” Id. at 654-55 (citing Farmer v.
Haas, 990 F.2d 319, 321-22 (7th Cir. 1993)). In his
motion, Jones states that he mailed letters to two attorneys
on November 1, 2017, and had not received any response from
them as of November 17, 2017. Sending just two letters-to
which Jones has not given the attorneys significant time to
respond-does not constitute a reasonable effort to obtain
private counsel. Jones' motion to appoint counsel will
therefore be denied without prejudice. Because the denial is
without prejudice, Jones may file a new motion to appoint
counsel as the case proceeds, if circumstances change.
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. 8, 9, 10, 12, 13) are
DENIED as moot.
IS ALSO ORDERED that Defendants Captain Slayton and
Supervisor Mayer are DI ...