Jordan v. Giusti et al

Filing 7

SCREENING ORDER signed by Judge William C. Griesbach on 6/3/2021. Plaintiff's #2 MOTION for leave to proceed in forma pauperis is GRANTED. This action is DISMISSED pursuant to 28 U.S.C. 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. The Clerk is to document the inmate has incurred a "strike" under 28 U.S.C. 1915(g). The Clerk shall enter judgment. (cc: all counsel and mailed to pro se party and officer in charge)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT HENRY JORDAN,
Plaintiff,
v.

Case No. 21-C-494

STEVEN G. GIUSTI, et al.,
Defendants.
SCREENING ORDER
Plaintiff Robert Henry Jordan, who is currently serving a state prison sentence at Columbia
Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983,
alleging that the defendants violated his civil rights. This matter comes before the Court on
Jordan’s motion for leave to proceed without prepayment of the full filing fee and to screen the
complaint.
MOTION FOR LEAVE 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 $111.02. Plaintiff’s motion for leave to proceed without prepaying the filing
fee will be granted.

SCREENING OF THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity, and dismiss any complaint
or portion thereof if the prisoner has raised any 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). In screening a complaint, the
Court must determine whether the complaint complies with the Federal Rules of Civil Procedure
and states at least plausible claims for which relief may be granted. 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). It must be
at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well
as when and where the alleged actions or inactions occurred, and the nature and extent of any
damage or injury the actions or inactions caused.
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
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ALLEGATIONS OF THE COMPLAINT
Jordan is an inmate at Columbia Correctional Institution (CCI) and works as a “culinary
worker.” Dkt. No. 1 at 2. Defendant Steven G. Giusti is a correctional officer at CCI who serves
as “food service leader.” Id. Both Jordan and Giusti are Wisconsin citizens. See id. Jordan also
names CCI as a defendant in this case. Id.
At around 9:00 a.m. on December 21, 2020, Jordan helped transfer produce from a food
delivery truck to “pallets” at the institution. Id. Jordan overheard one of the civilian workers on
the food delivery truck say that someone forgot to place a rubber stopper under the truck tire. Id.
As a result, the truck rolled back, cracked the pallet, and the pallet got stuck on the forklift on the
truck. Id. at 2-3.
Jordan, Giusti, and another inmate attempted to move the forklift with the pallet still
attached to it. Id. As Jordan lifted the machine, his foot slipped, and the forklift fell and “smashed”
into his foot. Id. at 3. Jordan was eventually able to get his foot released, and he discovered that
he could not walk or stand up straight; there was blood on his socks. Id. Jordan asked to go to the
health services unit and staff told him to take a seat. Id. Someone then made a joke saying, “there
are some workers compensation forms in the office.” Id.
A “staff escort” arrived shortly thereafter and took Jordan to HSU in a wheelchair. Id.
Jordan received an x-ray, which showed that he had a fracture. Id. Jordan believes that this
incident happened because the individual operating the food delivery truck did not have a license
to operate an electric forklift. Id. Jordan states, “because of staff negligence my foot was ran over
by the forklift controlled by staff.” Id. For relief, Jordan seeks monetary damages. Id. at 4.
THE COURT’S ANALYSIS
“To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he or she
was deprived of a right secured by the Constitution or the laws of the United States, and that this
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deprivation occurred at the hands of a person or persons acting under the color of state law.” D.S.
v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of
Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)).
The Court will dismiss this case for failure to state a claim upon which relief can be granted.
First, the Columbia Correctional Institution is not a “person” within the meaning of § 1983;
therefore, it is not a proper defendant in this lawsuit. See, e.g., Sellers v. Columbia Corr. Inst.’s
Health Serv. Unit, No. 20-CV-578-JDP, 2020 WL 6709943, at *1 (W.D. Wis. Nov. 16, 2020)
(“[E]ntities like prisons or departments within in the prison are not proper defendants for this type
of lawsuit.”). Second, negligence is not a basis for liability under § 1983. Hildreth v. Butler, 960
F.3d 420, 426 (7th Cir. 2020). Federal courts have jurisdiction over lawsuits that allege a violation
of federal law or the Constitution, or over lawsuits between citizens of different states in cases
involving certain amounts of money. If Jordan (a Wisconsin plaintiff) wants to sue Giusti (a
Wisconsin defendant) for negligence, Jordan must file that lawsuit in state court. This federal
court can consider Jordan’s lawsuit only if he has alleged a violation of federal law or the
Constitution, which he has not done.
Jordan states that the individual driving the food delivery truck did not have a license to
operate an electric forklift, but that too is a violation of a prison policy and/or other state law and
does not give rise to a federal constitutional claim. Wozniak v. Adesida, 932 F.3d 1008, 1011 (7th
Cir. 2019) (“[A] constitutional suit is not a way to enforce state law through the back door.”). And
the joke from staff that “there are some workers compensation forms in the office” may have been
unprofessional and unnecessary but that too does not violate the constitution. See DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000). Jordan’s complaint fails to state a claim upon which
relief can be granted.

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Although the Court generally gives a civil plaintiff at least one opportunity to amend his
complaint, the Court need not do so where the amendment would be futile. See Boyd v. Bellin,
835 F. App’x 886, 889 (7th Cir. 2021). Jordan’s complaint is thorough in its allegations of fact
surrounding this claim, and what happened to him was clearly an accident (i.e. negligence, at best).
In other words, Giusti’s conduct and state of mind do not arise to the level of a constitutional
violation.

Hildreth, 960 F.3d at 426 (“To be sure, negligence, gross negligence, or even

recklessness as the term is used in tort cases is not enough—the prison officials’ state of mind must
rise to the level of deliberate indifference.”); see also Boyd, 835 F. App’x at 888. The Court
therefore finds that further amendment of the complaint would be futile. It will dismiss this case.
CONCLUSION
This plaintiff has provided no arguable basis for relief, having failed to make any rational
argument in law or fact to support his claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir.
1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.
Williams, 490 U.S. 319 (1989)).
IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has
incurred a “strike” under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $238.98 balance of the filing fee by collecting monthly
payments from 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
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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, the transferring institution shall forward a copy of this
order along with Plaintiff’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
Dated at Green Bay, Wisconsin this 3rd day of June, 2021.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
This order and the judgment to follow are final. Plaintiff may appeal this court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This court may extend this deadline if a party timely requests an
extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. § 1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
Under certain circumstances, a party may ask this court to alter or amend its judgment under Federal
Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of judgment. The court cannot extend
these deadlines. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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