Jones v. McClain
SCREENING ORDER signed by Chief Judge William C Griesbach on 12/5/2017 DENYING as Moot 9 , 10 , 11 and 13 Motions and GRANTING 2 MOTION for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel, via US Mail to Jones and Warden)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 17-C-1523
Plaintiff Jermel Jones, who is currently serving a state prison sentence at Waupun
Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated while he was incarcerated at Racine Correctional Institution (RCI). This matter comes
before the court on Jones’ motion for leave to proceed without prepayment of the full filing fee.
ECF No. 2. Jones is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Jones 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 $1.35. His motion for
leave to proceed without prepaying the filing fee will be granted. Also before the court are several
motions for extension of time to pay the initial partial filing fee and for leave to pay the initial partial
filing fee from Jones’ release account. ECF Nos. 9, 10, 11, 13. Because the court has received
Jones’ initial partial filing fee, these motions will be denied as moot.
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, 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). 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). To state a claim for relief under § 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 the color
of state law. Buchanan-Moore v. Cty. of Milwaukee, 570 F.2d 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).
Jones’ complaint alleges that Defendant Ryan McClain, a correctional officer at RCI, violated
the Eighth Amendment’s bar on cruel and unusual punishment by using excessive force against him
during an incident that allegedly occurred on August 23, 2017, while Jones was incarcerated at RCI.
He alleges that McClain approached his cell during dinner that night, at which time Jones said that
he intended to tie a towel around his own neck if McClain did not give him his dinner tray.
According to Jones, “McClain then said he will spray me and I told him you can’t spray me since I
don’t have the towl [sic] around my neck. . . . McClain then said you want a [sic] bet. And I said
yes. . . . McClain then open[ed] up my foodport trap and sprayed me in the face . . . .” ECF No. 1
at 2. Jones alleges that being sprayed with an incapacitating agent caused him to have an asthma
attack, which required that he be rushed to the hospital. He further alleges that McClain “knew that
he was not suppose[d] to spray me unless I pose[d] a threat to myself or to him,” knew that Jones
has asthma, and knew that spraying Jones with an incapacitating agent could cause an asthma attack.
Id. at 3.
Claims for both excessive force and deliberate indifference fall under the umbrella of the
Eighth Amendment’s prohibition on cruel and unusual punishment, which bars “unnecessary and
wanton infliction of pain,” particularly when “totally without penological justification.” Hope v.
Pelzer, 536 U.S. 730, 737 (2001). Specifically, the inquiry in claims involving allegations of
excessive force by prison officials against an inmate is whether the prison official inflicted an injury
“maliciously and sadistically for the very purpose of causing harm.” See Hudson v. McMillian, 503
U.S. 1, 6 (1992); Whitley v. Albers, 475 U.S. 312 (1986). Thus, the infliction of even a relatively
minor or de minimis injury can constitute a violation of the Eighth Amendment’s prohibition of
“cruel and unusual” punishment if it is done maliciously. Hudson, 503 U.S. at 9 (“When prison
officials maliciously and sadistically use force to cause harm, contemporary standards of decency
always are violated. . . . This is true whether or not significant injury is evident.”).
This subjective standard for excessive force claims makes it difficult to rule out Eight
Amendment excessive force claims at the screening phase, particularly in light of the liberality with
which the court must construe Jones’ complaint. Here, Jones alleges that McClain responded to his
threat of self-harm—but not any action in furtherance of it—by spraying Jones with an incapacitating
agent, despite knowing about Jones’ asthma. The court therefore concludes that Jones may proceed
against McClain on the excessive force claim.
Accordingly, the court finds that Jones may proceed on his claim against McClain for using
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motions for extension of time to pay the
initial partial filing fee and for leave to pay the initial partial filing fee from his release account (ECF
Nos. 9, 10, 11, 13) are DENIED as moot.
IT IS FURTHER ORDERED that pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, copies of the plaintiff’s complaint and this order are
being electronically sent today to the Wisconsin Department of Justice for service on the state
IT IS ALSO ORDERED that, pursuant to the informal service agreement between the
Wisconsin Department of Justice and this court, the defendant shall file a responsive pleading to the
complaint within sixty (60) days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $348.65 balance of the filing fee by collecting monthly
payments from the plaintiff’s prison trust account in an amount equal to 20% of the preceding
month’s income credited to the prisoner’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 the
plaintiff is transferred to another institution, the transferring institution shall forward a copy of this
Order along with plaintiff’s remaining balance to the receiving institution.
IT IS ALSO ORDERED that copies of this order be sent to the officer in charge of the
agency where the inmate is confined.
IT IS FURTHER ORDERED that the parties may not begin discovery until after the court
enters a scheduling order setting deadlines for discovery and dispositive motions.
IT IS ALSO ORDERED that, pursuant to the Prisoner E-Filing Program, the plaintiff shall
submit all correspondence and case filings to institution staff, who will scan and e-mail documents
to the Court. The Prisoner E-Filing Program is in effect at Columbia Correctional Institution, Dodge
Correctional Institution, Green Bay Correctional Institution, Oshkosh Correctional Institution,
Waupun Correctional Institution, and Wisconsin Secure Program Facility. If the plaintiff is no longer
incarcerated at a Prisoner E-Filing Program institution, he will be required to submit all
correspondence and legal material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
125 S. Jefferson Street, Suite 102
Green Bay, WI 54301
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of address. Failure to
do so could result in orders or other information not being timely delivered, thus affecting the legal
rights of the parties. Therefore, failure to provide your correct address could result in dismissal of
your case for failure to prosecute.
Dated at Green Bay, Wisconsin this 5th day of December, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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