Grothjan v. Rissman
OPINION AND ORDER STRIKING 1 PRO SE COMPLAINT with Jury Demand filed by Plaintiff Jason Grothjan. Clerk DIRECTED to place this case number on a blank Prisoner Complaint form and forward it to Plaintiff. Plaintiff GRANTED until 4/24/2017 to file an Amended Complaint on that form. Plaintiff CAUTIONED if he does not respond by the deadline, this case will be dismissed. Signed by Judge Rudy Lozano on 3/30/17. (Copy mailed to pro se party with copy of Order and form).(cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MR. B. RISSMAN,
Case No. 3:17-CV-130
OPINION AND ORDER
Jason Grothjan, a pro se prisoner, filed a complaint alleging
that he was verbally harassed by Mr. Rissman, his case manager at
the Westville Correctional Facility (“Westville”). (DE 1.) Pursuant
to 28 U.S.C. § 1915A, the Court must review a prisoner complaint
and dismiss it if the action is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks monetary
relief against a defendant who is immune from such relief. Courts
apply the same standard under Section 1915A as when deciding a
motion under Federal Rule of Civil Procedure 12(b)(6). Lagerstrom
v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive a motion
to dismiss under Rule 12(b)(6), a complaint must state a claim for
relief that is plausible on its face. Bissessur v. Indiana Univ.
Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009). “A claim has
facial plausibility when the plaintiff pleads factual content that
defendant is liable for the misconduct alleged.” Id. at 603.
construed, and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
claim under 42 U.S.C. § 1983, a plaintiff must allege: “(1) that
defendants deprived him of a federal constitutional right; and (2)
that the defendants acted under color of state law.” Savory v.
Lyons, 469 F.3d 667, 670 (7th Cir. 2006).
Grothjan is an inmate at Westville and complains that on two
occasions in November 2016, he and his case manager B. Rissman got
into a heated argument. Grothjan complains about being verbally
harassed by Rissman. Typically, verbal harassment does not trigger
constitutional protections. See DeWalt v. Carter, 224 F.3d 607, 612
(7th Cir. 2000) (“[S]imple verbal harassment does not constitute
cruel and unusual punishment, deprive a prisoner of a protected
liberty interest or deny a prisoner equal protection of the
laws.”). However, verbal abuse can constitute cruel and unusual
punishment under the Eighth Amendment in limited situations. Beal
v. Foster, 803 F.3d 356, 357-58 (7th Cir. 2015).
Here, there are no allegations that Mr. Rissman’s statements
to Grothjan - while certainly deplorable - amount to anything more
than simple verbal harassment. Thus, it does not seem plausible
that Rissman’s statements give rise to a constitutional claim.
DeWalt, 224 F.3d at 612. Consequently, as pled, this complaint does
not state a claim. However, in the spirit of Luevano v. Wal-Mart,
722 F.3d 1014 (7th Cir. 2013), Grothjan will be given leave to file
an amended complaint.
For these reasons, the court:
(1) STRIKES the complaint (DE 1);
(2) DIRECTS the clerk to place this cause number on a blank
Prisoner Complaint (INND Rev. 8/16) form and send it to Jason
(3) GRANTS Jason Grothjan to and including April 24, 2017, to
file an amended complaint on that form; and
(3) CAUTIONS Jason Grothjan that if he does not respond by the
deadline, this case will be dismissed pursuant to 28 U.S.C. § 1915A
because the current complaint does not state a claim for which
relief can be granted.
DATED: March 30, 2017
/s/RUDY LOZANO, Judge
United States District Court
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