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Weiss v. Shurpit

United States District Court, E.D. Wisconsin

April 25, 2018

MARK A. WEISS, Plaintiff,
v.
P. SHURPIT, et al., Defendants.

          SCREENING ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT

         The plaintiff, who is currently serving a state prison sentence at Dodge 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.

         Motion to Proceed without Prepayment of the Filing Fee

         Plaintiff is required to pay the $400.00 filing fee for this action, which includes the $350.00 statutory filing fee and a $50.00 administrative fee. 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. In that case, the prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 statutory filing fee, not the $50.00 administrative fee. See 28 U.S.C. § 1915(b)(1). 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), and has been assessed an initial partial filing fee of $18.80. Plaintiff has also filed a motion to waive the initial partial filing fee indicating that he lacks the funds to pay it. The court will grant the motion and waive the initial partial filing fee. 28 U.S.C. § 1915(b)(4).

         Screening of the Complaint

         The 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).

         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). 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).

         Allegations of the Complaint

         Plaintiff's alleges he choked on a chicken bone found in his food. He claims the other inmates noticed what was going on and called out, but officers did not respond for about three minutes. Eventually, he was able to cough the bones out and officers responded. The officers gave him a glass of water and told him to take his time. He also was taken to the health services unit because of his sore throat.[1] Plaintiff alleges the officers failed to protect him because they did not immediately give him the Heimlich maneuver. Plaintiff also seeks to bring a claim against Defendant Ms. P. Shurpit, who is the Food Services Administrator; the DOC Food Services Administration office; and the food packaging company for deliberate indifference to the chicken bone within his food.

         The Court's Analysis

         Plaintiff has failed to state a claim upon which relief can be granted. 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 his 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) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the 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 has failed to state a claim against the John Doe correctional officers, Defendant Shurpit, the DOC Food Services Administration office, [2] and the food services company for deliberate indifference to the risk of a chicken bone in his food. To establish an Eighth Amendment deliberate indifference violation, a prisoner must show (1) that he was incarcerated under conditions posing a substantial risk of serious harm and (2) that the official acted with deliberate indifference to risk. Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010); Farmer v. Brennan, 511 U.S. 825, 834 (1994).

         Deliberate indifference requires more than negligence; it requires that the official know of, yet disregard, an excessive risk to the inmate's health or safety. Farmer, 511 U.S. at 835, 837. Subjective knowledge of the risk is required: "[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. To recover under § 1983, a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). An official satisfies the personal responsibility requirement of § 1983 if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent. Id.

         The failure on the part of correctional officers to administer the “Heimlich maneuver” within three minutes of an inmate choking on a chicken bone is not deliberate indifference. Especially in view of the fact that Plaintiff problem was not food blockage but a bone caught in his throat, which he coughed up within minutes, their failure to undertake such a response would appear quite reasonable. The allegation that the ...


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