United States District Court, E.D. Wisconsin
DYLAN J. KOHLHOFF, Plaintiff,
DIRK LARSEN, et al., Defendants.
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Dylan Kohlhoff, who is currently housed at Waushara County
Jail 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 and to screen the complaint.
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 paid an initial partial
filing fee of $2.00. 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).
in the Complaint
alleges that on May 9, 2018, Nurse Dirk Larsen confronted him
in an aggressive manner, stated “I'm sick of your
stupid requests, ” and yelled at him for filing
“petty grievances.” Dkt. No. 1 at 2. Plaintiff
excused himself from the Health Services Unit (HSU) and told
Larsen that he was being unprofessional. Larsen followed
Plaintiff into the hallway and continued to yell at
Plaintiff. Captain Robert Kumholtz intervened, and Plaintiff
returned to his pod. Shortly thereafter, Correctional Officer
William Roehl told Plaintiff to return to HSU. Roehl sat in
HSU and allowed Plaintiff to be confronted by Larsen.
asserts that Nurse Dirk Larsen violated his First and Eighth
Amendment rights when he yelled at Plaintiff for filing petty
grievances. “Standing alone, simple verbal harassment
does not constitute cruel and unusual punishment, deprive a
prisoner of a protected liberty interest or deny a prisoner
equal protection of the laws.” DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000). Although
Nurse Larsen may have been rude and unprofessional when he
yelled at Plaintiff, Larsen's conduct, standing alone,
does not rise to the level of a First Amendment or Eighth
Amendment violation. Therefore, these claims will be
claims that Correctional Officer William Roehl violated his
First and Eighth Amendment rights when he allowed Larsen to
yell at him because Plaintiff had filed grievances against
Roehl in the past. To state a retaliation claim, the
plaintiff must allege that “(1) he engaged in activity
protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was
‘at least a motivating factor' in the
Defendants' decision to take retaliatory action.”
Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir.
2009). In this case, Plaintiff has not alleged that he
suffered a deprivation that would likely deter First
Amendment activity in the future. Accordingly,
Plaintiff's claims against Roehl will be dismissed.
also alleges that Captain Robert Kumholtz and Lieutenant
Heather Wittig failed to properly supervise Larsen and Roehl.
Section 1983 does not provide a cause of action against an
individual based upon his supervisory role over another
person. See Odogba v. Wis. Dep't of Justice, 22
F.Supp.3d 895, 909 (E.D. Wis. 2014) (citing Polk Cty. v.
Dodson, 454 U.S. 312, 325 (1981); Monell v.
Dep't of Soc. Servs., 436 U.S. 657, 699 n.58 (1978);
McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th
Cir. 1994)). A defendant will only be liable under §
1983 if the conduct causing the deprivation “occurs at
his discretion or with his knowledge and consent.”
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995). Plaintiff cannot state a claim that Kumholtz and
Wittig were indifferent to the misconduct of their
subordinates because Larsen and Roehl did not engage in
misconduct that caused a constitutional violation. Therefore,
Plaintiff's failure to supervise claims will be
also seeks to challenge the Jail's grievance procedure.
He asserts that Wittig, Curtis Olsen, and Jeffrey Nett
implemented a poor grievance policy and failed to train staff
on how to properly handle inmate complaints. Plaintiff has no
constitutional right to a grievance procedure and has no
constitutional right to have an existing grievance procedure
properly administered by jail staff. See Antonelli v.
Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (“a
state's inmate grievance procedures do not give rise to a
liberty interest protected by the ...