United States District Court, E.D. Wisconsin
THOMAS H. L. BARFELL, Plaintiff,
ARAMARK, WINNEBAGO COUNTY JAIL, TIM, GALE, JENNY, LT. LICHTENSTEIGER, SGT. MANTHEY, SGT. PARENT, SGT. DURANT, DEPUTY ARCHER, and CPI VERGUTZ, Defendants.
Stadtmueller, U.S. District Judge
Thomas H. L. Barfell, a Wisconsin state prisoner who is
representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that Defendants violated his civil
rights. This case is currently assigned to Magistrate Judge
William E. Duffin. Not all parties have had the opportunity
to fully consent to magistrate judge jurisdiction under 28
U.S.C. § 636(c). Therefore, this matter is before this
branch of the Court for the limited purpose of screening the
amended complaint, (Docket #9), and resolving pending
motions, (Docket #2, #11, #12).
Plaintiff's Motion to Proceed Without Prepayment of the
Prison Litigation Reform Act (“PLRA”) applies to
this case because Plaintiff was incarcerated when he filed
his complaint. 28 U.S.C. § 1915. The law allows an
incarcerated plaintiff to proceed with his lawsuit without
prepaying the filing fee, as long as he meets certain
conditions. One of those conditions is that the plaintiff pay
an initial partial filing fee. Id. § 1915(b).
Once plaintiff pays the initial partial filing fee, the Court
may allow him to pay the balance of the $350 filing fee over
time, through deductions from his prison trust account.
December 19, 2017, Magistrate Duffin waived the initial
partial filing fee in this action because Plaintiff neither
had the assets nor the means to pay it. (Docket #7).
Magistrate Duffin ordered Plaintiff to notify the court by
January 9, 2018 if he wanted to voluntarily dismiss the
action to avoid the potential to incur a strike under Section
1915(g). Plaintiff did not voluntarily dismiss; therefore,
the Court will grant his motion to proceed without prepayment
of the filing fee and will screen his amended complaint.
Screening the Amended Complaint
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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). 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);
Gladney v. Pendelton Corr. Facility, 302 F.3d 773,
774 (7th Cir. 2002). 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;
Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. The Court is obliged to give
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, 106 (1976)).
is an inmate at the Winnebago County Jail
(“WCJ”). Defendants are: Aramark, WCJ, Tim, Gale,
Jenny, Lt. Lichtensteiger, Sgt. Manthey, Sgt. Parent, Sgt.
Durrant, Deputy Archer, and CPI Vergutz. On September 21,
2017, Plaintiff asked Corporal Rasmussen, who is not named as
a defendant, for a religious vegan diet. Rasmussen was on
vacation at the time and Sgt. Parent “was put in
charge” of such requests. (Docket #9 at 2). Parent did
not approve Plaintiff's religious vegan diet request
until five days later, on September 26, 2017.
September 2017 and January 2018, Plaintiff asked Manthey,
Durrant, and Vergutz for inmate grievance forms to complain
about the quality of the vegan food trays he received from
the prison food service, Aramark. According to Plaintiff,
Aramark sent the same exact food at every meal every day,
they often sent food Plaintiff could not eat (milk, eggs, and
meat), they once sent food mixed with “cleaning
solution, ” and they occasionally sent expired food
that had spoiled. Sometime in October 2017, Archer gave
Plaintiff “rice crispies” off of one the
“regular” trays, but Plaintiff cannot eat them
because they contain milk and eggs.
gave Plaintiff the inmate grievance forms he requested on
some occasions. On other occasions, Manthey refused because
the issues Plaintiff complained about “had already been
addressed.” (Docket #9 at 3- 4). Similarly, Durrant and
Vergutz sometimes addressed Plaintiff's concerns
regarding his ...