United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
Jermaine Lockhart, who is incarcerated at Waupun Correctional
Institution, 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 motion 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 $1.54. 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. 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)).
alleges that Defendant failed to provide him socks for a few
months, which led to Plaintiff developing athlete's foot.
(Docket #1 at 2-3). 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). But a
prisoner's rights are only violated when prison
conditions fall below “‘the minimal civilized
measure of life's necessities.'” Gillis v.
Litscher, 468 F.3d 488, 491 (7th Cir. 2006) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
Plaintiff's experience may have been unpleasant, it is
not anywhere near severe enough to implicate constitutional
concerns. Had Plaintiff lost a toe to frostbite, for
instance, the Court's conclusion would be different, but
many people experience athlete's foot with a limited
amount of discomfort and treat it themselves with
over-the-counter medication. At best, Defendant was negligent
in providing Plaintiff with socks, but negligence is not
enough to violate the Constitution. Townsend v.
Cooper, 759 F.3d 678, 687 (7th Cir. 2014). The Court
finds that Plaintiff has failed to state a viable claim for
relief, and will therefore dismiss this action with
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 this action be and the same
is hereby DISMISSED with prejudice pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that Plaintiff has incurred a “strike” under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account
the balance of the filing fee, $348.46, by collecting monthly
payments from Plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to Plaintiff's trust account and forwarding
payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If Plaintiff is
transferred to another institution, county, state, or
federal, the transferring institution shall forward a copy of
this Order along with Plaintiff's remaining balance to
the receiving institution; and
IS FURTHER ORDERED that a copy of this order be sent
to the officer in charge of the ...