Williams v. Taycheedah Correctional Institution et al

Filing 4

ORDER signed by Judge J P Stadtmueller on 3/25/10 as follows: granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis; dismissing this action for failure to state a claim; directing the Clerk of Court document that this inmate has brought an action that was dismissed for failure to state a claim and that this inmate has incurred a "strike"; directing the Wis Dept of Corrections to collect the balance of the filing fee from the plaintiff's prison trust account and forwarding payment to the Clerk as specified. See Order. (cc: plaintiff, Warden of Taycheedah Correctional Institution, AAG Corey Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
S O N I A W IL L IA M S , P l a i n t if f, v. T A Y C H E E D A H CORRECTIONAL INSTITUTION, L T . AUBERTSON, C.O. NUTTER, and C.O. DODD, D e fe n d a n ts . C a s e No. 09-CV-1147

ORDER
T h e plaintiff, Sonia W illia m s , who is incarcerated at Taycheedah Correctional In s titu tio n , filed a pro se complaint under 42 U.S.C. § 1983, alleging that her civil rig h ts were violated. This matter comes before the court on the plaintiff's petition to p ro c e e d in forma pauperis. The plaintiff is required to pay the statutory filing fee of $350.00 for this action. S e e 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fe e , she can request leave to proceed in forma pauperis. The plaintiff has filed a c e rtifie d copy of her prison trust account statement for the six-month period im m e d ia te ly preceding the filing of her complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $11.95. T h e court is required to screen complaints brought by prisoners seeking relief a g a in s t 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 p ris o n e r 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 d e fen d a n t 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 fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o state a cognizable claim under the federal notice pleading system, the p la in tiff is required to provide a "short and plain statement of the claim showing that [s h e ] is entitled to relief." Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and her statement need only "give the defendant fair notice o f what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1 9 5 7 ) ) . However, a complaint that offers "labels and conclusions" or "formulaic re c ita tio n of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U . S . ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). To s ta te a claim, a complaint must contain sufficient factual matter, accepted as true, "th a t is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. a t 570). "A claim has facial plausibility when the plaintiff pleads factual content that 2

a llo w s the court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint

a lle g a tio n s "must be enough to raise a right to relief above the speculative level." T w o m b ly , 550 U.S. at 555. In considering whether a complaint states a claim, courts should follow the p rin c ip le s set forth in Twombly by first, "identifying pleadings that, because they are n o more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. C t. at 1950. Legal conclusions must be supported by factual allegations. Id. If there a re well-pleaded factual allegations, the court must, second, "assume their veracity a n d then determine whether they plausibly give rise to an entitlement to relief." Id. T o state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1 ) she was deprived of a right secured by the Constitution or laws of the United S ta te s ; and 2) the deprivation was visited upon him by a person or persons acting u n d e r color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 8 2 7 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7 th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is o b lig e d to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal c o n s tr u c tio n . See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (q u o tin g Estelle v. Gamble, 429 U.S. 97, 106 (1976)). T h e plaintiff alleges that when she arrived at Taycheedah Correctional Ins titutio n on May 23, 2008, she was issued a white pair of shoes with velcro fa s te n e rs that was three sizes too small. The plaintiff wears a size 9½ and the state3

is s u e d shoes were size 6½. She reported this to staff and was told that they did not h a ve her size. Defendant Dodd forced the plaintiff to wear the small shoes

"p ro p e rly" and to stop walking on the backs of shoes. Defendant Nutter told the p la in tiff she had to walk in them the correct way even though the shoes were causing h e r feet, ankle, and hip to experience extreme discomfort. Lt. Albertson stated there w e re no shoes anywhere in the prison that would fit her size, so she was stuck with th e small shoes. It took three days for the plaintiff to get the right sized pair of shoes b e c a u s e of the Memorial Day holiday. The plaintiff brings claims under the Eighth and Fourteenth Amendments b a s e d on the suffering she had to endure. For relief, she seeks $300,000 for the p a in in her feet, her hip problems, and punitive damages for forcing her to wear the s m a ll shoes for three days. T o plead an Eighth Amendment claim, the plaintiff need only allege that prison o ffic ia ls deliberately ignored conditions of confinement that failed to meet c o n te m p o ra ry requirements of minimal decency. Townsend v. Fuchs, 522 F.3d 765, 7 7 3 (7th Cir. 2008); Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001). Minimal d e c e n c y requires the prison to provide reasonably adequate sanitation and p ro te c tio n from the cold. See Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006); D ix o n v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997). T h e plaintiff alleges that wearing the too-small shoes for three days was u n c o m forta b le , even painful, and no doubt it was. However, an objectively,

s u ffic ie n tly serious injury is one that deprives an inmate of "the minimal civilized 4

m e a s u re of life's necessities, see Rhodes v. Chapman, 452 U.S. 337, 347 (1981), a n d only extreme deprivations will support an Eighth Amendment claim. Delaney, 2 5 6 F.3d at 683. The plaintiff does not allege an objectively sufficiently serious d e p riva tio n to implicate the Eighth Amendment. See Ashann-Ra v. Virginia, 112 F. S u p p . 2d 559, 563-64 (W .D . Va. 2000) (prisoner did not state Eighth Amendment c la im based on allegations that correctional officers failed to provide him with wellfittin g shoes where he did not allege facts indicating that he suffered any serious p h ys ic a l injury to his feet or any other part of his body as a result of officers' failure to provide him with well-fitting shoes for 24 days and did not allege facts indicating th a t correctional officers exhibited deliberate indifference in failing to provide him w ith properly fitting shoes more quickly); Wallace v. Carver, 2008 W L 4154413 (D. U ta h 2008) (unpublished) (prisoner who alleged that he was forced to wear shoes th a t were too small for about one month, while correct-sized shoes were being o rd e re d , failed to state an Eighth Amendment claim); see also Wellons v. Townley, 5 2 8 F. Supp. 73, 75 (W .D . Va. 1981) (requirement that prisoner wear uncomfortably s m a ll shoes for temporary time in order to visit dentist was not basis of cognizable a c t io n ) . A d d itio n a lly, the plaintiff alleges that her new shoes arrived at the prison three d a ys after it was discovered that correct-sized shoes were not available anywhere in the institution. Thus, the plaintiff's allegations do not indicate the defendants were a w a re of and disregarded the problem, but rather, the defendants were both aware

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o f and remedied the problem.

As such, the plaintiff does not allege that the

d e fe n d a n ts acted with deliberate indifference. This plaintiff has provided no arguable basis for relief, having failed to make a n y rational argument in law or fact to support her claims. See House v. Belford, 9 5 6 F.2d 711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7 th Cir. 1988), aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)). IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma pauperis (Docket #2) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that this action be and the same is hereby D IS M IS S E D pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to s ta te a claim; IT IS FURTHER ORDERED that the Clerk of Court document that this inmate h a s brought an action that was dismissed for failure to state a claim under 28 U.S.C. § § 1915(e)(2)(B) and 1915A(b)(1); IT IS FURTHER ORDERED that the Clerk of Court document that this inmate h a s incurred a "strike" under 28 U.S.C. §1915(g). IT IS FURTHER ORDERED that the Secretary of the W is c o n s in Department o f Corrections or his designee shall collect from the plaintiff's prison trust account the $ 3 2 6 .1 0 balance of the filing fee by collecting monthly payments from the plaintiff's p ris o n trust account in an amount equal to 20% of the preceding month's income c r e d it e d to the prisoner's trust account and forwarding payments to the Clerk of

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C o u rt 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 n u m b e r assigned to this action. IT IS FURTHER ORDERED that the Clerk of Court enter judgment a c c o r d in g ly . IT IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857. I FURTHER CERTIFY that any appeal from this matter would not be taken in g o o d faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide a rg u m e n ts supporting his appeal. D a te d at Milwaukee, W is c o n s in , this 25th day of March, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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