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Barfell v. Winnebago County Jail

United States District Court, E.D. Wisconsin

April 16, 2018

THOMAS H. L. BARFELL, Plaintiff,



         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, #10, #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 #5). 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

         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)).

         Plaintiff is an inmate at the Winnebago County Jail (“WCJ”). Defendants are: WCJ, Deputy Bauer, Deputy Vergutz, Deputy Veness, Sgt. Durrant, Sgt. Manthey, W212, W114, Deputy Farr, Deputy Sadouska, Lt. Rozek, Lt. Lichtensteiger, Deputy Moon, W126, Deputy Lemmer, Deputy Mathwig, Deputy Archer, W216, and Deputy Stenson.

         Plaintiff's amended complaint includes numerous grievances against nineteen different defendants. The grievances range in topic from denial of use of the library, inadequate religious services, denial of a haircut for trial, issues with his mail-legal and personal, food trays sitting out in the kitchen too long, the phone use policy, the new “dayroom” policy, the temperature, and sleeping arrangements.

         According to Plaintiff, between September 2017 and January 2018, he tried to file inmate grievances to resolve these issues and all of the named Defendants at one point or another denied him an inmate grievance form. Often times when Plaintiff asked for an inmate grievance form, Defendants would respond by saying that he did not need one because his complaint “isn't a grievable issue.” (Docket #9 at 6). For relief, Plaintiff seeks a change in policy and monetary damages.

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: (1) he was deprived of a right secured by the Constitution or laws of the United States; and (2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980).

         At the outset, the Court must dismiss WCJ as a defendant. A county jail is not a “person” subject to suit under Section 1983. See Nawrocki v. Racine Cty. Jail, No. 08-CV-96-BBC, 2008 WL 4417314, at *1 (W.D. Wis. Mar. 7, 2008) (“[A] building is ...

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