Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kohlhoff v. Larsen

United States District Court, E.D. Wisconsin

May 30, 2019

DYLAN J. KOHLHOFF, Plaintiff,
v.
DIRK LARSEN, et al., Defendants.

          SCREENING ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff 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.

         Motion to Proceed without Prepayment of the Filing Fee

         The 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.

         Screening of the Complaint

         The 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).

         To 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).

         Allegations in the Complaint

         Plaintiff 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.

         The Court's Analysis

         Plaintiff 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 dismissed.

         Plaintiff 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.

         Plaintiff 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 dismissed.

         Plaintiff 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.