United States District Court, E.D. Wisconsin
GREGORY S. OSTERN, Plaintiff,
JUDY P. SMITH, HANS KUSTER, BRAD D. SCHIMEL, and JON LITSCHER, Defendants.
STADTMUELLER. U.S. DISTRICT JUDGE.
Gregory S. Ostern proceeds in this matter pro se. He
filed a complaint in Dane County Circuit Court alleging that
Defendants, prison officials at Oshkosh Correctional
Institution (“Oshkosh”), have caused him harm.
(Docket #1-1 at 7-13). Defendants removed the action to this
Court on January 19, 2018, asserting its jurisdiction over
Plaintiff's allegation that his federal constitutional
rights were violated. (Docket #1 at 2). Simultaneously,
Defendants moved the Court to screen Plaintiff's
complaint pursuant to 28 U.S.C. § 1915A. (Docket #2).
That motion will be granted and the Court will proceed to
screen the complaint.
1915A requires a court to screen complaints brought by
prisoners seeking relief against a governmental entity or an
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. Id. § 1915A(b).
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). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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). It is not
necessary for the plaintiff 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)). 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). “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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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.
state a claim for relief under 42 U.S.C. Section 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 color of state law. Buchanan-Moore
v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009) (citing Kramer v. Vill. of North 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. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
alleges that he was being investigated and/or punished for
sexual misconduct while at Oshkosh. (Docket #1-1 at 11). On
December 5, 2016, Defendant Hans Kuster
(“Kuster”), a captain at Oshkosh,
“sexual[ly] harassed me by drawing a sexual[ly]
explicit picture of some type of animal[']s face”
on some paperwork Kuster was handling in connection with that
misconduct. (Docket #1-1 at 8). He complained to the other
Defendants who apparently did not sufficiently address
Plaintiff's concern. Id. at 9-12. Plaintiff
asserts that his action is one for “personal injury -
other punitive damages, slander of my sexuality, degrading,
humiliation, [and] cruel unusual punishment.”
Id. at 10.
Eighth Amendment prohibits “cruel and unusual”
punishment of prisoners. U.S. Const. Amend VIII. This
statement has been interpreted to protect them from
“unnecessary and wanton infliction of pain, ”
Christopher v. Bass, 384 F.3d 879, 881 (7th Cir.
2004) (quotation omitted), from “deliberate
indifference” to their “serious medical needs,
” Snipes v. DeTella, 95 F.3d 586, 590 (7th
Cir. 1996) (quotation omitted), and from being subjected to
conditions of confinement which “deprive [the prisoner]
of the minimal civilized measure of life's
necessities.” Goetsch v. Ley, 444 F. App'x
85, 89 (7th Cir. 2011) (quotation omitted). Plaintiff's
allegations do not implicate any of these concerns. See
Christopher, 384 F.3d at 882 (giving examples of valid
claims such as exposure to raw sewage, amputation of limbs by
defective machinery, and attacks from other inmates);
Snipes, 95 F.3d at 591 (removing a toenail without
anesthetic did not evince deliberate indifference to a
serious medical need); Goetsch, 444 F. App'x at
89 (four months in segregation was not cruel and unusual, in
light of precedent holding that three years was not
excessive). In other words, assuming he is correct that
Kuster drew a sexually suggestive picture, this does not rise
to a level of constitutional concern. Instead, this is at best an
action for some form of infliction of emotional distress,
which is a matter of state, not federal, law.
claim for relief under the Eighth Amendment must be
dismissed. No federal claims remain, and the Court declines
to exercise supplemental jurisdiction over Plaintiff's
state law claim(s) (assuming, without deciding, that any are
validly stated). 28 U.S.C. § 1367(c)(3); Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 636 (2009).
The case must, therefore, be remanded to the Circuit Court of
Dane County for any further proceedings.
IT IS ORDERED that Defendants' motion
for a screening order (Docket #2) be and the same is hereby
IS FURTHER ORDERED that Defendants' motion for
an extension of time to respond to the complaint (Docket #2)
be and the same is hereby DENIED as moot;
IS FURTHER ORDERED that Plaintiff's claim for
cruel and unusual punishment pursuant to the Eighth Amendment
be and the same is hereby DISMISSED; and
IS FURTHER ORDERED that the Clerk of the Court is
directed to take all appropriate steps to effectuate the
remand of ...