United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE.
plaintiff, who is currently serving a state prison sentence
at Oshkosh Correctional Institution and representing himself,
filed a complaint under 42 U.S.C. § 1983, alleging that
his civil rights were violated. This matter comes before the
court on Plaintiff's motion for leave to proceed without
prepaying the full filing fee. Plaintiff 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 without prepayment of the full filing fee.
Plaintiff 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). Though Plaintiff has been assessed
an initial partial filing fee of $2.27, it appears Plaintiff
lacks the funds to pay the initial partial filing fee.
Therefore, the court waives the initial partial filing fee
and will screen Plaintiff's complaint.
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).
of the Complaint
at all times relevant to the allegations in the complaint was
an inmate at Wisconsin Resource Center. Plaintiff alleges
that on May 26, 2014, as Plaintiff returned to unit A-1 from
lunch, Defendant Doris Dehn, a psychiatric care technician,
implied and suggested that he was homosexual. He immediately
filed a grievance regarding Dehn's conduct. Plaintiff
claims that while he exhausted his administrative remedies,
he experienced additional distress caused by IUS Jason
McHugh, Social Worker Susan Ott, Administrative Captain
Wallace Bumps, Social Services Director Nancy Irizarry, and
other psychiatric care technicians. Defendant McHugh
investigated Plaintiff's complaints. During the
investigation, Plaintiff told Defendant McHugh that he
noticed “behavior shifts” in other A-1 inmates,
which varied by individual, toward Plaintiff as a result of
Defendant Dehn's comments. In particular, Plaintiff
asserts he suffered “extended victimization and
harassment” from other inmates. Though Plaintiff asked
to be transferred from the A-1 unit where Defendant Dehn and
her colleagues were stationed, Defendant McHugh denied his
requests. Instead, McHugh told Plaintiff he would be
transferred to segregation if he did not stop requesting a
transfer to a different unit. Plaintiff also alleges
Defendant Irizarry failed to intervene after Plaintiff
complained to her. Although Irizarry told Plaintiff he was
entitled to victim services, he never received them.
asserts claims against Dehn, McHugh, Ott, Bumps, and Irizarry
under the Prison Rape Elimination Act (PREA), 42 U.S.C.
§ 15601 et seq. The PREA was enacted to reduce
and eliminate prison sexual abuse by developing national
standards for reporting and detection. Nothing in the
language of the statute establishes a private right of
action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 286
(2002) (“[W]here the text and structure of a statute
provide no indication that Congress intends to create new
individual rights, there is no basis for a private suit,
whether under § 1983 or under an implied right of
action.”). Therefore, Plaintiff cannot assert a §
1983 claim based on the PREA.
addition, Plaintiff's allegations do not implicate the
Eighth Amendment. “Standing alone, simple verbal
harassment does not constitute cruel and unusual punishment,
deprive a prisoner of a protected liberty interest or deny a
prisoner equal protection of the laws.” DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000).
Plaintiff's allegations regarding the effects of the
harassment are vague, and he has not alleged that the
defendant's verbal harassment rose to the level of cruel
and unusual punishment. Although the defendants' comments
may be inappropriate, Plaintiff has not stated a conceivable
claim upon which relief can be granted.
claim that Irizarry failed to intervene after Plaintiff
complained to her fails for this reason as well. An official
can be held liable under § 1983 if she “(1) had
reason to know that a fellow officer was using excessive
force or committing a constitutional violation, and (2) had a
realistic opportunity to intervene to prevent the act from
occurring.” Lewis v. Downey, 581 F.3d 467, 472
(7th Cir. 2009). Because the conduct Plaintiff complained of
does not rise to the level of a constitutional violation, he
cannot state a plausible failure-to-intervene claim against
asserts a retaliation claim against McHugh. He claims McHugh
threatened to put him in segregation if he did not stop
asking to be transferred to a different unit where Dehn and
her colleagues were not stationed. To prevail on a First
Amendment retaliation claim, Plaintiff must show that (1) he
engaged in activity protected by the First Amendment; (2) he
suffered a deprivation that would likely deter First
Amendment activity in the future; and (3) the First Amendment
activity was “at least a motivating factor” in
McHugh's decision to take the retaliatory action.
Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009). Although Plaintiff alleges he made complaints about
Dehn's conduct, he does not identify any retaliatory
action taken by McHugh or allege that he suffered a
deprivation of any kind. In short, Plaintiff has failed to
state a retaliation claim against McHugh.
lists Warden John Doe, John Doe Bantleon, Mary Klemz, Deidre
Morgan, Steve Spanbauer, Karen Gourlie, Charles Kacktor, and
Welcome Rose as defendants, but the complaint fails to
contain any allegations against them. Plaintiff has failed to
indicate how these defendants violated his constitutional
rights or what injury or damage their actions caused him.
Therefore, he has failed to state a claim against these
defendants, and they will be dismissed from this action.
plaintiff 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. ...