United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
plaintiff, who is currently serving a state prison sentence
at Waupun 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.
to Proceed without Prepayment of the Filing Fee
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). Plaintiff lacks
the funds to pay the partial filing fee. Therefore, the court
waives the initial partial filing fee. 28 U.S.C. §
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
alleges that on December 25, 2017, he was in his cell when he
told Defendant, a correctional officer, that he intended to
cut himself with a spoon. When Defendant asked why, Plaintiff
alleges he told Defendant he was upset about being kept on
control status. Defendant allegedly then asked for the spoon,
but Plaintiff states that he told Defendant he wanted to talk
to a supervisor. In response, Defendant allegedly threatened
to use pepper spray, but Plaintiff alleges that he responded
by telling Defendant that he has asthma and, in any event,
that Defendant was not permitted to use pepper spray because
Plaintiff was not actually cutting himself. Plaintiff alleges
that Defendant then walked away and returned with a large can
of pepper spray, which he allegedly used to spray Plaintiff
in the face through his cell's food trap. As a result of
being sprayed, Plaintiff alleges that he had an asthma attack
and had to be taken to the hospital by ambulance. He alleges
that he remained in the hospital until December 27, 2017.
Finally, he alleges that he reviewed his medical file on
January 12, 2018, and confirmed the existence of a note
advising the security staff not to spray him due to
contraindications for incapacitating agents.
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 Plaintiff's
complaint. Here, Plaintiff alleges that Defendant sprayed him
with an incapacitating agent despite a warning from Plaintiff
and a note in Plaintiff's medical file indicating that
doing so could harm Plaintiff due to his asthma. The court
therefore concludes that Plaintiff may proceed against
Defendant on this excessive force claim.
IS THEREFORE ORDERED that Plaintiff's motion for
leave to proceed in forma pauperis (ECF No. 2) is
IS FURTHER ORDERED that Plaintiff's motion to
pay the initial partial filing fee from his release ...