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Harwick v. Foster

United States District Court, E.D. Wisconsin

November 5, 2019




         Plaintiff 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.

         Motion 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). 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.

         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, 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 of the Complaint

         Plaintiff 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 management.

         Plaintiff 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.

         Plaintiff 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.

         The Court's Analysis

         The 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 the problem.

         Plaintiff 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 ...

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