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Tyler v. Okora

United States District Court, E.D. Wisconsin

July 25, 2018

LT. OKORA, Defendant.



         Plaintiff Randy Lee Tyler is in custody at the Milwaukee County House of Correction, and is representing himself. Magistrate Judge William E. Duffin issued an order screening the plaintiff's complaint; the plaintiff had alleged that defendant Lt. Okora forced him to clean human waste without “protective gear or the proper cleaning supplies.” Dkt. No. 10 at 3. Judge Duffin decided that he needed more information to determine whether the plaintiff had stated a constitutional claim. He directed the plaintiff to file an amended complaint describing the contaminated area that the defendant allegedly forced him to clean; what supplies, if any, the defendant gave him to clean the feces; and whether he came into contact with the feces. Id. at 5. The plaintiff has filed that amended complaint, dkt. no. 12, which the court screens under 28 U.S.C. §1915A.

         Along with his amended complaint, the plaintiff filed a second motion for leave to proceed without prepayment of the filing fee. Dkt. No. 13. The court will deny this motion as moot, because Judge Duffin granted the plaintiff's first motion for leave to proceed without prepayment of the filing fee. (A plaintiff does not have to pay a filing fee for amending his complaint-only for filing the original complaint.)

         The clerk's office originally assigned this case to Judge Duffin. The law says that magistrate judge may not resolve a civil case unless both parties-the plaintiff and the defendants-agree. Here, the court has not yet ordered the marshals to serve the complaint on the defendant. That means that the defendant does not know the plaintiff has sued him, so he can't agree to Magistrate Judge Duffin resolving the case. For that reason, the clerk's office reassigned the case to this court, an Article III district court judge who can resolve the case without the parties' consent. The court finds that the plaintiff has not stated a constitutional claim, and will dismiss the case.

         I. Screening The Amended Complaint

         A. Federal Screening Standard

         The law requires the court 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 if the plaintiff raises 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 relief. 28 U.S.C. §1915A(b).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1) someone deprived him of a right secured by the Constitution or laws of the United States; and 2) that person was acting under color of state law. Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives a pro se plaintiff's 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)).

         B. The Plaintiff's Allegations

         The plaintiff alleges that on January 9, 2018, defendant Okora forced him to clean up feces “when there are trained people to do so called the Bio-Hazard team.” Dkt. No. 12 at 2. The plaintiff says that, in front of another officer, Okora declared that he was not going to call the Bio-Hazard team, and said that if the plaintiff did not clean the feces in the shower, Okora would take away the plaintiff's phone, canteen, visits and recreation privileges. Id. The defendant allegedly gave the plaintiff a spray bottle, two white towels and latex gloves, and watched him clean up the feces. Id. at 2-3. According to the plaintiff, this occurred during a shift change, and the officers coming in for their shift said that the defendant was wrong for making the plaintiff clean up the feces. Id. at 3. The plaintiff states that he picked up the feces out of the shower and put them in a plastic bag along with the towels, gloves, and pants which were “in the shower that the inmate who defecated on himself (pants) [sic].” Id. The plaintiff alleges that the defendant made him clean up the feces because the defendant wanted to embarrass the plaintiff, and did not want to call the bio-hazard team. Id.

         The plaintiff has asked that court order the House of Corrections to fire the defendant, and has asked for $500, 000 in damages. Id. at 4.

         C. Analysis

         “Jail officials violate the Eighth Amendment if they are deliberately indifferent to adverse conditions that deny ‘the minimal civilized measure of life's necessities,' Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citation omitted), including adequate sanitation and personal hygiene items, see Rice [ex rel. Rice v. Corr. Med. Servs.], 675 F.3d [650, ] 664 [(7th Cir. 2012)]; Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006); Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007).” Budd v. Motley, 711 F.3d 840, 842 (7th Cir. 2013). The Eighth Amendment requires prison officials to maintain minimally sanitary and safe prison conditions. Johnson v. Pelker, 891 F.2d 136, 139 (7th Cir. 1989) (quoting DeMallory v. Cullen, 855 F.2d 442, 445 (7th Cir. 1988)). “Prison officials violate their constitutional responsibility to provide inmates with the minimal necessities of life when they disregard over a significant period an inmate's request to be relieved from exposure to human feces.” Cobian v. McLaughlin, 717 Fed. App'x 605, 611 (7th Cir. 2017) ...

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