United States District Court, E.D. Wisconsin
THOMAS H. L. BARFELL, Plaintiff,
WINNEBAGO COUNTY JAIL, DEPUTY BAUER, DEPUTY VERGUTZ, DEPUTY VENESS, SGT. DURANT, 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, 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, #10, #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 #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.
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: 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.
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
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
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).
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 ...