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Barfell v. Aramark

United States District Court, E.D. Wisconsin

April 16, 2018

THOMAS H. L. BARFELL, Plaintiff,


          J. P. Stadtmueller, U.S. District Judge

         Plaintiff 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).

         1. Plaintiff's Motion to Proceed Without Prepayment of the Filing Fee

         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. Id.

         On 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.

         2. Screening the Amended Complaint

         2.1 Applicable Law

         The 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).

         To 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.

         In 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)).

         2.2 Factual Allegations

         Plaintiff 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.

         Between 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.

         Manthey 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 ...

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