United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, DISTRICT JUDGE UNITED STATES DISTRICT
Dustin Harwick, who is currently serving a state prison
sentence at Kettle Moraine Correctional Institution 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
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). 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 and paid an initial partial filing fee of $20.15.
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, 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
claims he was deprived of a basic need to have his pillow and
mattress replaced for almost a year and a half while he was
housed at Green Bay Correctional Institution. He alleges that
he received a faulty pillow and had numerous eye infections
as a result of debris leaking from his pillow accumulating in
his eyes. Plaintiff also suffered from severe neck and back
pain and migraines because he was not provided with a usable
pillow. On October 15, 2015, Dr. Sauvey issued Plaintiff a
prescription for another pillow and pain medication for pain
claims Sergeant Stevens failed to honor Plaintiff's
prescription for a pillow and pillow priority list. Plaintiff
was only provided with a pillow when he complained to health
services unit personnel, the security department, and the
inmate complaint review system. Plaintiff asserts that
Sergeant Stevens retaliated against him for filing numerous
grievances by refusing to replace his pillow. Although
Sergeant Stevens asserted that there were no other pillows to
give to inmates, Plaintiff was issued a pillow on October 22,
2015, and noted that there were numerous pillows located in
the “SCH” that Sergeant Stevens knew about.
Plaintiff alleges Sergeant Stevens violated the priority list
again on March 30, 2016, when she did not give Plaintiff a
new pillow and gave Plaintiff a pillow with holes in it. He
later received a better pillow from Correctional Officer
Lannoye. Plaintiff claims Sergeant Stevens gave false
information to inmate complaint examiner DeGroot by stating
that she replaced Plaintiff's pillow with one that was in
better condition on March 31, 2016. Plaintiff asserts Captain
Stevens failed to investigate his numerous claims regarding
Sergeant Stevens' misconduct.
asserts Warden Brian Foster failed to provide Plaintiff with
a usable pillow and mattress and affirmed numerous dismissals
of Plaintiff's complaints. Plaintiff claims Warden Foster
failed to provide a safe and secure environment for Plaintiff
and subjected Plaintiff to a prolonged period without a
proper pillow and mattress. He asserts Warden Foster
subjected him to two eye infections by not properly
investigating the condition of his pillow.
Eighth Amendment prohibits “cruel and unusual
punishments” and imposes a duty on jail officials to
ensure that inmates receive humane conditions of confinement
for their health and safety. Rice ex rel. Rice v. Corr.
Med. Servs., 675 F.3d 650, 655 (7th Cir. 2012)
(“Incarcerated persons are entitled to confinement
under humane conditions which provide for their ‘basic
human needs.'”). To assert a conditions of
confinement claim, a plaintiff must allege that the adverse
condition is sufficiently serious and the prison official has
been deliberately indifferent to that condition. Id.
at 664-65. An adverse condition must be “extreme”
to be sufficiently serious, Hudson v. McMillian, 503
U.S. 1, 9 (1992), and it must deprive the prisoner of a
“minimal civilized measure of life's
necessities.” Farmer v. Brennan, 511 U.S. 825,
834 (1994). Plaintiff alleges that he suffered eye infections
as a result of debris from his pillow getting into his eyes
and that he had back and neck pain as well as migraines. He
claims that Sergeant Stevens refused to replace his pillow
despite knowing that he had a medical need for a replacement
and that Warden Foster received numerous grievances and
complaints regarding his inadequate pillow but did not remedy
also asserts an Eighth Amendment deliberate indifference
claim against Warden Foster and Sergeant Stevens. To state a
deliberate indifference claim, a plaintiff must allege that
the defendant was aware of a serious medical need and
consciously failed to take reasonable measures to help him.
See Gomez v. Randle, 680 F.3d 859, 865 (7th Cir.
2012). Plaintiff alleges that Warden Foster and Sergeant
Stevens were aware of his eye infections but prevented him
from receiving a new pillow. At ...