Hambright v. Kemper et al

Filing 11

ORDER signed by Magistrate Judge Nancy Joseph on 9/15/14 GRANTING 2 Motion for Leave to Proceed in forma pauperis. Defendants shall file a responsive pleading to the complaint within 60 days. The WI DOC shall collect the $333.87 filing fee balance from Hambright's prison trust acct statement in accordance with 28 USC §1915(b)(2) (cc: all counsel, mailed to plaintiff and warden) (djd)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DE’MONTA LAMAR HAMBRIGHT,
Plaintiff,
v.

Case No. 13-CV-1362

WARDEN PAUL KEMPER,
R. MALONE,
TOMMY THOMAS,
ZACHARIA NURDEEN, and
MR. WAHLSTROM,
Defendants.

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AND SCREENING PLAINTIFF’S COMPLAINT

The plaintiff, De’monta Lamar Hambright (“Hambright”), filed a complaint under 42
U.S.C. § 1983, along with a motion for leave to proceed in forma pauperis.
Hambright has been assessed and paid an initial partial filing fee of $16.13. I will grant
his motion for leave to proceed in forma pauperis.
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).
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). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or
“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 allegations “must be enough to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In 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.
To state a claim for relief under 42 U.S.C. § 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
Village of North 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

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pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)).
Here, Hambright avers that the Eid feast celebrating the conclusion of Ramadan was
scheduled to take place at 1:00 p.m. on August 8, 2013, at Racine Correctional Institution.
Hambright, the chaplain, and the other Ramadan participants gathered in the chapel, but the
food did not arrive. Food service had made an error and did not prepare the meal as scheduled.
The feast was rescheduled to August 15, 2013, but Hambright did not attend. Hambright asserts
that the denial of his Eid feast violated his constitutional rights under the First and Eighth
Amendments. He avers that he has suffered extreme emotional distress, depression, and loss of
sleep as a result of missing his Islamic meal on his Holy Day, and that he was prescribed
medication to deal with the deprivation of the feast.
Hambright wrote to each of the named defendants regarding the feast not taking place
on August 8, 2013. He was advised repeatedly that there was a communication problem and
that the feast had been rescheduled.
It appears from Hambright’s complaint and the attached exhibits that it was a mistake
that resulted in the Ramadan participants not having their Eid feast on the scheduled day.
Negligent conduct on the part of a state official is insufficient to make out a constitutional
violation. Daniels v. Williams, 474 U.S. 327, 331, 333-34 (1986); Thomas v. Farley, 31 F.3d 557,
558 (7th Cir. 1994).
Nevertheless, I must liberally construe Hambright’s pro se allegations. See Erickson, 551
U.S. at 94. In doing so, I read Hambright’s complaint to suggest that the problem with the Eid
feast may have been intentional. Hambright also submits that, according to Chaplain Nardeen,
the prayer and ceremonials could have been extended to the third day, but Eid feast was held
eight days later, beyond the third day.
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Prisoners retain the right to exercise their religious beliefs,
although that right is not unfettered. See O'Lone v. Estate of Shabazz,
482 U.S. 342, 348-49, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987);
Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64
(1987); Tarpley v. Allen County, In., 312 F.3d 895, 898 (7th
Cir.2002). Prison officials may restrict inmate's ability to practice
his faith so long as the restriction is reasonably related to a
legitimate penological interest. See Turner, 482 U.S. at 89, 107
S.Ct. 2254. Legitimate penological interests include security and
economic concerns. Al-Alamin v. Gramley, 926 F.2d 680, 686 (7th
Cir.1991). When officials assert such a concern to justify the
curtailment of an inmate's religious exercise, we must consider
four factors in determining whether the challenged restriction is
constitutional: (1) whether the restriction “is rationally related to
a legitimate and neutral governmental objective”; (2) “whether
there are alternative means of exercising the right that remain
open to the inmate”; (3) “what impact an accommodation of the
asserted right will have on guards and other inmates”; and (4)
“whether there are obvious alternatives to the [restriction] that
show that it is an exaggerated response to [penological] concerns.”
Lindell v. Frank, 377 F.3d 655, 657 (7th Cir.2004) (citing Turner,
482 U.S. at 89-91, 107 S.Ct. 2254).
Ortiz v. Downey, 561 F.3d 664, 669 (7th Cir. 2009).
At this stage, I cannot assume that the defendants had a legitimate penological reason
to delay the rescheduled feast for a week. I will allow Hambright to proceed on First
Amendment free exercise claims against each of the named defendants.
NOW, THEREFORE, IT IS ORDERED that the plaintiff’s’s motion for leave to
proceed in forma pauperis (Docket # 2) be and hereby is GRANTED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement between
the Wisconsin Department of Justice and this court, copies of Hambright’s complaint and this
order are being electronically sent today to the Wisconsin Department of Justice for service on
the state defendants.

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IT IS ALSO ORDERED that, pursuant to the informal service agreement between the
Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading
to the complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from Hambright’s prison trust account the $333.87
balance of the filing fee by collecting monthly payments from Hambright’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.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the institution
where the inmate is confined.
Dated at Milwaukee, Wisconsin this 15th day of September, 2014.

BY THE COURT:

s/ Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge

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