United States District Court, E.D. Wisconsin
MARK A. WEISS, Plaintiff,
P. SHURPIT, et al., Defendants.
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
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.
to Proceed without Prepayment of the Filing Fee
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).
of the Complaint
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).
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).
of the Complaint
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. 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.
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)).
has failed to state a claim against the John Doe correctional
officers, Defendant Shurpit, the DOC Food Services
Administration office,  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).
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.
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 ...