United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE
plaintiff, who is currently at Kenosha County Detention
Center and representing himself, filed a complaint under 42
U.S.C. § 1983, alleging that his civil rights were
violated and seeking damages. This matter comes before the
court on the plaintiff's motion for leave to proceed
without prepaying the full filing fee and to screen the
to Proceed without Prepayment of the Filing Fee
plaintiff has requested leave to proceed without prepayment
of the full filing fee (in forma pauperis). A
prisoner plaintiff proceeding in forma pauperis is
required to pay the full amount of the $350.00 filing fee
over time. See 28 U.S.C. § 1915(b)(1). The
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 $3.34 and paid $3.50. The
plaintiff's motion for leave to proceed without prepaying
the filing fee will be granted.
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
plaintiff alleges that on January 2, 2019, Corporal Neaf and
Thorne sprayed an excessive amount of OC spray “to
subdue a federal inmate who did not want to leave.”
Dkt. No. 1 at 2.
plaintiff's complaint will be dismissed because it fails
to plausibly state a claim upon which relief may be granted.
The complaint does not include “a short plain statement
of the claim showing that the pleader is entitled to relief,
” as required by the Federal Rules of Civil Procedure.
Fed.R.Civ.P. 8(a)(2). The plaintiff's complaint does not
specify exactly what occurred to the plaintiff, the
circumstances surrounding what occurred, and what injuries,
if any, the plaintiff allegedly sustained as a result. Though
the defendants allegedly used OC spray, “the use of
mace is not a per se violation of the Eighth
Amendment, and it can be used in limited quantities when
reasonably necessary to subdue or maintain control over an
inmate.” Musgrove v. Detella, 74 Fed.Appx.
641, 646 (7th Cir. 2003) (citing Soto v. Dickey, 744
F.2d 1260, 1270-71 (7th Cir. 1984)). The plaintiff's
complaint does not provide enough information to for the
court to determine whether the defendants' alleged use of
OC spray was “reasonably necessary” given the
circumstances. Indeed, it is not even clear whether the
plaintiff was just a bystander when the spray was used on
another inmate and whether the plaintiff was in the same cell
or another cell at the time. The plaintiff's use of
conclusory language in his complaint-“excessive force,
” “deliberate indifference, ” and
“cruel and unusual punishment, ” Dkt. No. 1 at
2-does not bolster his claim as “a court need not
accept as true ‘legal conclusions[, or t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.'” Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (quoting
Ashcroft, 556 U.S. at 678). Legal conclusions must
be supported by factual allegations. Aschcroft, 556
U.S. at 679. A complaint is required to provide notice to
each defendant of what he or she did to, or did not do for,
the plaintiff, including any injuries that resulted, that
potentially gives rise to personal liability on the part of a
defendant and warrants requiring that he or she respond to a
federal lawsuit. See George v. Smith, 507 F.3d 605,
608 (7th Cir. 2007) (noting that plaintiffs “must give
enough detail to illuminate the nature of the claim and allow
defendants to respond”).
a federal lawsuit, which requires the state or county to
expend the resources and incur the costs needed to defend
even a meritless suit, should not be done lightly. If an
inmate has been subjected to cruel and unusual punishment or
other constitutional violation, a federal lawsuit is
appropriate. If, instead, the claim amounts to little more
than minor discomfort inadvertently inflicted on a bystander
as correctional officers are attempting to force an
incorrigible inmate to comply with their lawful orders, it is
a waste of time and money for both the courts and the
defendants. The allegations of the complaint fail to provide
sufficient factual information to allow the court to
determine whether the plaintiff has a claim or not.
Accordingly, the court will dismiss the complaint without
prejudice. If the plaintiff wishes to proceed, he must file
an amended complaint curing the deficiencies in the original
complaint as described herein. An amended complaint must be
filed on or before June 14, 2019. Failure to
file an amended complaint within this time period will result
in dismissal of this action.
plaintiff is advised that the amended complaint must bear the
docket number assigned to this case and must be labeled
“Amended Complaint.” The amended complaint
supersedes the prior complaint and must be complete in itself
without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056 (7th Cir. 1998). In Duda, the
appellate court emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading.”
Id. at 1057 (citation omitted). If the amended
complaint is received, it will become the operative complaint
in this action, and the court will screen it in accordance
with 28 U.S.C. § 1915A.
the plaintiff is advised that 42 U.S.C. § 1983
“creates a cause of action based on personal liability
and predicated upon fault; thus liability does not attach
unless the individual defendant caused or participated in a
constitutional violation.” Vance v. Peters, 97
F.3d 987, 991 (7th Cir. 1996). Moreover, the doctrine of
respondeat superior (supervisory liability) does not apply to
actions filed under 42 U.S.C. § 1983. See Pacelli v.
deVito, 972 F.2d 871, 877 (7th Cir. 1992). Section 1983
does not create collective or vicarious responsibility.
Id. Thus, with respect to any claim or claims
advanced in his amended ...