United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
Jeranek Dwayne Diaz, who is incarcerated at Fox Lake
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that Defendant CO
Ndina (“Ndina”), an officer at the Milwaukee
County Jail, violated his civil rights. (Docket #1). This
matter comes before the Court on Plaintiff's petition to
proceed without prepayment of the filing fee, or in forma
pauperis. (Docket #2). Plaintiff has been assessed and
has paid an initial partial filing fee of $14.80.
See 28 U.S.C. § 1915(b).
Court must 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. § 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. 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 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, 106 (1976)).
times relevant to Plaintiff's complaint, he was confined
in the Milwaukee County Jail. (Docket #1 at 2). Plaintiff
alleges that on May 8, 2018 he reported to an unnamed
correctional officer that the toilet in his cell was not
flushing. Id. The officer put in a work order with
the maintenance department. Id. On May 9, because of
some special circumstances in the jail, Plaintiff was locked
in his cell for the entirety of the first shift (he does not
say how long this was), where his toilet was overflowing with
feces and urine. Id. The next day, May 10, Plaintiff
was again locked in his cell for the whole first shift, now
with feces and urine on the floor. Id. at 2-3.
Plaintiff notified Ndina, a correctional officer at the jail,
who said she would make a call to check on the progress of
the repair. Id. at 3. She did not let Plaintiff out
of his cell. Id. Instead, at noon that day, Ndina
brought Plaintiff lunch to eat in his cell. Id.
Plaintiff objected, saying that he did not want to eat in a
cell where there was excrement on the floor. Id. An
inmate in a neighboring cell complained about the same thing,
and he was eventually let out of his cell. Id.
complaint meets the low bar of screening to state a
conditions-of-confinement claim under the Eighth
Amendment's proscription of cruel and unusual punishment.
To prevail on a conditions-of-confinement claim under the
Eighth Amendment, an inmate must establish that (1) the
condition complained of is sufficiently serious to implicate
constitutional protection, and (2) prison officials acted
with deliberate indifference to inmate health or safety.
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(quotation and internal marks omitted). To satisfy the first
requirement, “the inmate must show that he is
incarcerated under conditions posing a substantial risk of
serious harm.” Id. With regard to the second
requirement, the Supreme Court has explained that
“deliberate indifference entails something more than
mere negligence . . . [but] something less than acts or
omissions for the very purpose of causing harm or with the
knowledge that harm will result.” Id. at 835.
The Court defined this “deliberate indifference”
standard as equal to “recklessness, ” in which
“a person disregards a risk of harm of which he is
aware.” Id. at 836-37.
Seventh Circuit has held that while “a single clogged
toilet does not violate the Constitution, ”
Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir.
2019), prolonged exposure to human excrement can, see
e.g., Johnson v. Pelker, 891 F.2d 136, 139-40 (7th Cir.
1989) (prisoner held for three days in segregation cell
smeared with human feces and having no running water);
Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir.
1992) (prisoner held in cell that was filthy and smelled of
human waste, contained dirty bedding, and had rusted toilets,
no toilet paper, and black worms in the drinking water);
Isby v. Clark, 100 F.3d 502, 505-06 (7th Cir. 1996)
(prisoner held in segregation cell that was “filthy,
with dried blood, feces, urine and food on the walls”);
see also DeSpain v. Uphoff, 264 F.3d 965, 974 (10th
Cir. 2001) (concluding that exposure to human waste, even for
36 hours, would constitute sufficiently serious deprivation
to violate Eighth Amendment). Therefore, Plaintiff's
allegation that he was forced to remain for three days in a
cell with feces and urine on the floor is sufficient to
satisfy the first element of his conditions-of-confinement
claim for the purpose of screening.
as to the subjective element of his claim, Plaintiff has
sufficiently alleged the Ndina was aware of the unsanitary
condition of Plaintiff's cell and did not meaningfully
address it. Discovery may reveal that Ndina acted reasonably
in response to learning of Plaintiff's plight, but that
is a matter for later briefing. If Plaintiff believes there
was another officer-such as the first officer he notified of
the toilet issue-who knew of the condition of Plaintiff's
cell and failed to take steps to correct the issue, he can
amend his complaint to add that defendant.
Plaintiff shall be permitted to proceed on conditions of
confinement claim, in violation of the Eighth Amendment,
against Ndina. 28 U.S.C. § 1915A(b).
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepaying the filing fee (Docket
#2) be and the same is hereby GRANTED;
IS FURTHER ORDERED that, pursuant to an informal
service agreement between Milwaukee County and this Court,
copies of Plaintiff's complaint and this Order are being