United States District Court, E.D. Wisconsin
ORDER SCREENING AMENDED COMPLAINT (DKT. NO. 12),
DENYING AS MOOT PLAINTIFF'S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 13) AND
DISMISSING CASE FOR FAILURE TO STATE A CLAIM
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
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.
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
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.
Screening The Amended Complaint
Federal Screening Standard
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).
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).
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)).
The Plaintiff's Allegations
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.
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.
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) ...