Lewis v. Foster et al

Filing 12

ORDER DISMISSING CASE signed by Judge Rudolph T. Randa on 6/9/2015. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Case DISMISSED for failure to state a claim upon which relief can be granted. (cc: all counsel, via mail to Mack Lewis at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MACK L. LEWIS,
Plaintiff,
-vs-

Case No. 15-CV-209

BRIAN FOSTER, SARAH COOPER
CAPTAIN SCHULTZ, CATHY FRANCOIS,
and CO ELHKE,
Defendants.

SCREENING ORDER
The plaintiff, who is incarcerated at the Green Bay Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that
his civil rights were violated. This matter comes before the Court on the
plaintiff’s petition to proceed in forma pauperis. He has been assessed and
paid an initial partial filing fee of $7.62.
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). The Court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or
where the factual contentions are clearly baseless. Neitzke, 490 U.S. at
327. “Malicious,” although sometimes treated as a synonym for “frivolous,”
“is more usefully construed as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).
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
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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
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Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the
plaintiff’s pro se allegations, “however inartfully pleaded,” a liberal
construction.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting

Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff alleges that he was denied recreation for two months
(September 20, 2014, through November 21, 2014) while housed in Green
Bay Correctional Institution’s “Step Segregation Unit.” According to the
plaintiff, between September 20 and October 16, 2014, he requested
recreation about six times from defendant Officer Ehlke, who denied the
plaintiff’s requests because there were no recreation facilities available for
step unit segregation inmates. The plaintiff alleges that on October 30,
2014, he complained to defendant Segregation Program Supervisor Cathy
Francois about the lack of recreation and she stated that “the problem was
recognized and GBCI was ‘working’ on building rec pens.” On October 31,
2014, the plaintiff filed an inmate complaint about the lack of recreation
and on November 14, 2014, defendant Warden Brian Foster affirmed the
inmate complaint because: “GBCI is currently working on a procedure to
make the step unit consistent with the seg unit rec.” (ECF No. 1-3 at 3.)
The plaintiff claims that the two-month denial of recreation violated
his constitutional rights. However, the Seventh Circuit has held that “a
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denial of yard privileges for no more than 90 days at a stretch is not cruel
and unusual punishment.” Pearson v. Ramos, 237 F.3d 881, 884 (7th Cir.
2001). Moreover, as the plaintiff alleges, the defendants were working
towards securing recreation privileges for plaintiff in response to his
complaints. Therefore, the defendants were not deliberately indifferent
towards the plaintiff’s request for exercise. See Turley v. Rednour, 729 F.3d
645, 652-53 (7th Cir. 2013).
ORDER
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 this matter is DISMISSED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 9th day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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