United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Bowers, Jr., Sedrick Williams, Kendall Boyd, Alfonzo Thomas,
Jr., Geion Sims, and Mikell Lay filed a joint complaint
alleging that their civil rights were violated. By order
dated November 6, 2017, Bowers was ordered to pay the full
filing fee, Thomas and Sims were ordered to pay an initial
partial filing fee; and Williams, Lay, and Boyd were ordered
to notify the Clerk of Court's office of any change in
their address by November 27, 2017. The court subsequently
dismissed the action without prejudice for failure to
prosecute on November 29, 2017. On December 1, 2017, the
court received letters from Thomas and Sims, dated November
27, 2017, indicating that they lacked the funds to pay the
initial partial filing fee and wished to proceed with the
action. The court subsequently vacated the judgment of
dismissal, reopened the case, and waived Thomas and Sims'
initial partial filing fees. On December 5, 2017, the court
dismissed the plaintiffs' complaint and directed them to
file an amended complaint that complied with the requirements
of Rules 18 and 20 of the Federal Rules of Civil Procedure.
Sims submitted an amended complaint that was not signed
either by himself or Thomas on January 10, 2018. The court
struck the complaint and allowed the plaintiffs a final
opportunity to file an amended complaint that is signed by
February 8, 2018, the court received a complaint and a motion
for leave to proceed without prepayment of the filing fee
that are only signed by Sims. Because the court has already
granted Sims leave to proceed without prepayment of the
filing fee, his current motion will be denied as moot. In
addition, absent the signature of Thomas, there is no cause
of action pled for him. To date, Thomas has not filed a
timely submission pertaining to his claims. As a result, all
claims as to Thomas will be dismissed without prejudice. The
court will now screen Sims' 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).
alleges that he got food poisoning and had irregular bowel
movements after he ate the bagged lunch he received on August
21, 2017. As an initial matter, Sims' complaint does not
state which defendant violated his rights. Liability under
§ 1983 requires that the defendant be personally
involved in the violation of an inmate's constitutional
rights. Brooks v. Ross, 578 F.3d 574, 580 (7th Cir.
2009). Sims' complaint does not allege that a defendant
was personally involved in the violation of his rights. Even
if Sims were to cure these deficiencies, he has failed to
state a claim upon which relief can be granted. Sims'
allegation that he suffered from a single, isolated incident
of food poisoning is insufficient to support a claim that
jail officials violated his constitutional rights. See
Franklin v. True, 76 F.3d 381 (7th Cir. 1996) (holding
that a single instance of food poisoning is insufficient to
state a conditions of confinement claim); Becker v.
Dart, No. 15-C-7310, 2015 WL 5084728, at *3 (N.D. Ill.
Aug. 26, 2015). Sims has provided no arguable basis for
relief, having failed to make any rational argument in law or
fact to support his claims. See House v. Belford,
956 F.2d 711, 720 (7th Cir. 1992) (quoting Williams v.
Faulkner, 837 F.2d 304, 308 (7th Cir. 1988),
aff'd sub nom. Neitzke v. Williams, 490 U.S. 319
IS THEREFORE ORDERED that Sims' motion for leave
to proceed in forma pauperis (ECF No. 33) is
DENIED as moot.
IS FURTHER ORDERED that Sims' action is
DISMISSED pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A(b)(1) for failure to state a
IS FURTHER ORDERED that the Clerk of Court document
that Sims has incurred a "strike" under 28 U.S.C.
IS FURTHER ORDERED that all claims as to Thomas are
dismissed without prejudice inasmuch as he has not signed the
IS FURTHER ORDERED that the Clerk of Court enter
IS FURTHER ORDERED that copies of this order be sent
to the officer in charge of the agency where the inmates are
order and the judgment to follow are final. The plaintiff may
appeal this court's decision to the Court of Appeals for
the Seventh Circuit by filing in this court a notice of
appeal within 30 days of the entry of judgment. See
Fed. R. App. P. 3, 4. This court may extend this deadline if
a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Fed. R. App. P. 4(a)(5)(A). If the
plaintiff appeals, he will be liable for the $505.00
appellate filing fee regardless of the appeal's outcome.
If the plaintiff seeks leave to proceed in forma
pauperis on appeal, he must file a motion for leave to
proceed in forma pauperis with this court.
See Fed. R. App. P. 24(a)(1). Plaintiff may be
assessed another “strike” by the Court of Appeals
if his appeal is found to be nonmeritorious. See 28
U.S.C. § 1915(g). If the plaintiff accumulates three
strikes, he will not be able to file an action in federal
court (except as a petition for habeas corpus relief) without
prepaying the filing fee unless he demonstrates that he is in
imminent danger of serous physical injury. Id.
certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. Any motion under Federal Rule of Civil Procedure
60(b) must be filed within a reasonable time, generally no