United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
Anthony Duane Robinson proceeds in this matter pro
se. He filed a complaint alleging that Defendant
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
has paid an initial partial filing fee of $20.92. 28 U.S.C.
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an 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. Id. §
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). The court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109- 10 (7th Cir. 2003)
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). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“labels and conclusions” or a “formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 555). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). 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).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. Section 1983, a
plaintiff must allege that: 1) he was deprived of a right
secured by the Constitution or laws of the United States; and
2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County 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 is obliged
to give the plaintiff's pro se 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,
alleges that while he was incarcerated in the Milwaukee
County Jail in May 2019, he was denied clean clothing for
twenty-one days. (Docket #1 at 2-4). These allegations invoke
Plaintiff's Eighth Amendment right to be free from cruel
and unusual punishment. In particular, prisoners have a right
to certain necessities of life, such as “clothing,
sanitation, and hygienic materials.” Myers v. Ind.
Dep't of Corr., 655 Fed.Appx. 500, 503 (7th Cir.
2016). Whether a particular deprivation violates the Eighth
Amendment depends in large measure on its duration.
Id. at 504. Though the Court will allow Plaintiff to
proceed on this claim, Defendant is free to argue that the
deprivation was not long enough to become one of
Defendant, the Milwaukee County Sheriff, may not be the
correct defendant in this matter. Only those officials who
are directly responsible for a constitutional violation may
be sued under Section 1983. Minix v. Canarecci, 597
F.3d 824, 833-34 (7th Cir. 2010). However, Plaintiff's
allegations are not clear as to who should ultimately be held
responsible for the clothing issue. Thus, the Court will
serve Defendant with the complaint, and he may move to have a
different defendant substituted into the case if that is
the Court notes that Plaintiff requests three items for
relief: $5, 500, “paid counseling, ” and
“time served.” The first item, monetary damages,
is acceptable in a Section 1983 lawsuit. The second item,
injunctive relief, is also cognizable, though Plaintiff is
far less likely to receive it than a simple monetary payment.
The final item seeks to challenge the fact or duration of
Plaintiff's confinement. That is solely a matter for
habeas corpus relief pursuant to 28 U.S.C. § 2254, which
cannot be combined into a Section 1983 lawsuit. In any event,
being made to wear dirty clothes would not entitle Plaintiff
to have his convictions or sentence vacated. The Court will,
therefore, dismiss the claim for “time served.”
light of the foregoing, the Court finds that Plaintiff may
proceed on the following claim pursuant to 28 U.S.C. §
1915A(b): cruel and unusual punishment, in violation of the
Eighth Amendment, for being forced to wear dirty clothes for
twenty-one continuous days.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #2) be and the same is
IS FURTHER ORDERED that pursuant to the informal
service agreement between Milwaukee County and this court,
copies of Plaintiff's complaint and this Order are being
electronically sent today to Milwaukee County for service on
the Milwaukee County defendant;
IS FURTHER ORDERED that, pursuant to the informal
service agreement between Milwaukee County and this court,
Defendant shall file a responsive pleading to the complaint