Banks v. Boughton et al
Filing
9
ORDER DISMISSING CASE signed by Judge Pamela Pepper on 6/20/2017. 4 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Complaint DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for fa ilure to state a claim; Clerk of Court to document that plaintiff has incurred a "strike" under 28 U.S.C. §1915(g). Wisconsin DOC to collect $332.41 balance of filing fee from plaintiff's prison trust account in accordance with 28 U.S.C. §1915(b)(2). (cc: all counsel, via mail to Tarance Banks and Warden at New Lisbon Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TARENCE BANKS,
Plaintiff,
v.
Case No. 16-cv-1349-pp
GARY BOUGHTON, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 4), SCREENING COMPLAINT AND DISMISSING
CASE
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a complaint, dkt. no. 1, along with a motion for leave to proceed without
prepayment of the filing fee, dkt. no. 4. The court grants the motion to proceed
without prepaying the filing fee, screens the complaint, and dismisses the case.
I.
Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain
conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On October 24, 2016, the court ordered the plaintiff to pay an initial
partial filing fee of $17.59. Dkt. No. 6. The plaintiff paid that fee on November
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22, 2016. Accordingly, the court will grant the plaintiff’s motion. The court will
require the plaintiff to pay the remainder of the filing fee over time as set forth
at the end of this decision.
II.
Review of the Plaintiff’s Claim (“Screening” Order)
The law requires the court 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 part of it, if the plaintiff raises 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 must provide a “short and plain statement of the claim showing that
[he] is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). A complaint that offers “labels and conclusions,” however, 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
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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).
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendants: 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 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). The court is obliged to give the plaintiff’s pro
se allegations, “however inartfully pleaded,” a liberal construction. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
A. The Plaintiff’s Allegations
The plaintiff has only one arm; his left arm was amputated after he
suffered a shotgun wound.1 During the events he describes in the complaint,
he was incarcerated that the Wisconsin Secure Program Facility (“WSPF”) in
Boscobel, Wisconsin. Dkt. No. 1 at 1.
On June 15, 2015, the plaintiff wrote to the health services unit (HSU) at
WSPF, because his arm was itching (he’d previously been housed at Dodge
Correctional Institution; he’d reported the itching to the Dodge medical staff,
The plaintiff doesn’t explain this in his complaint in this case. But he had
another case before this court, and explained his situation in that complaint.
See Banks v. Patton, Case No. 14-cv-281 (E.D. Wis.), dkt. no. 1 at 6.
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who’d been “finding a way to do something about it.”). Id. at 2. In addition, the
plaintiff needed help clipping his fingernails. Id. It appears that HSU referred
him to an RN, who told him to talk to the Unit Manager social worker. They
also advised him that they were considering the nail clipping concern, and
would let him know. Id.
On June 22, 2015, the plaintiff wrote to the security director and asked
that WSPF provide him with the same accommodation for his arm that he had
received at Dodge. Id. at 2; Dkt. No. 1-1 at 2. For example, the plaintiff asked
that his floor be “scrubbed” (to make it less slippery) and that he be given a
chair to use in the shower. Id. Defendant Kartman responded that the
requested items were reviewed and some were determined a “security concern,”
and that security was “exploring alternatives.” Dkt. No. 1-1 at 2.
The plaintiff filed an inmate complaint about the denial of the requested
items. Dkt. No. 1 at 2. On July 20, 2015, the inmate complaint examiner (ICE)
recommended the complaint be dismissed. Dkt. No. 1-1 at 3. The ICE explained
that, while the requested items had been denied, the plaintiff had been
provided “a personal caretaker to accommodate his needs in place of the denied
property items.” Id.
On July 1, 2015, the plaintiff filed another inmate complaint, asserting
that his cell was not handicap accessible. Dkt. No. 1 at 2; Dkt. No. 1-1 at 8.
The plaintiff requested that he be given a toilet paper roll holder, a mounted
shower scrubber, and that his floor be “roughed up” to prevent slipping. Dkt.
No. 1-1 at 8. The ICE recommended the complaint be dismissed because “Unit
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Supervisor Kool ha[d] contacted maintenance and the toilet paper roll holder
and the cell floor will be completed as soon as possible.” Id. In addition, the
scrubber request was being considered by security. Id.
The plaintiff states that, on July 15, 2015, the Special Needs Committee
denied his request for fitted sheets. Dkt. No. 1 at 2. In its notification of the
denial, the committee instructed the plaintiff to refer his request “to the ADA.”
Dkt. No. 1-1 at 10.
On August 4, 2015, the plaintiff appealed the dismissal of his July 2015
inmate complaint. Dkt. No. 1-1 at 5. In reviewing the appeal, the corrections
complaint examiner explained that WSPF had made changes to the plaintiff’s
inmate care plan since the July 2015 decision. Id. She explained that WSPF
since had provided the plaintiff with a longer handled scrub bush at shower
times (passed out daily and collected by staff after the plaintiff finishes
showering), and had ordered a scrubber with suction cups to place on the
plaintiff’s sink so that he could wash his hand. Id. at 5, 11. She also stated
that HSU scheduled the plaintiff for weekly assessments of his arm and his
“need for assistance with bathing, lotion application, and nail clippings of
finger nails on the right hand.” Id. Finally, she noted that “the prosthetic arm
need has progressed to the referral stage but will still require final approval
from the DOC medical director.” Id.
In September 2015, the plaintiff slipped on the wet floor after taking a
shower, hurting his ankle and back. Dkt. No. 1 at 2. The plaintiff filed an
inmate complaint about how slippery his shower floor was. Dkt. No. 1-1 at 14.
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In affirming the complaint, the ICE noted that the plaintiff’s cell floor had
already been “roughed up” by maintenance; however, that solution appeared to
be inadequate. Id. at 15. The ICE spoke to defendant Kool, who requested that
maintenance explore other options. Id. Sometime later, WSPF added a non-slip
floor mat to the plaintiff’s shower area to lessen the likelihood of the plaintiff
slipping during his showers. Id. The plaintiff complained that he did not believe
the floor mat would be adequate and stated that he would prefer “sand strips”
be placed over his entire cell floor. Id. WSPF denied the plaintiff’s request for
sand strips, finding that the roughed up floor and added shower mat were
sufficient to address the risk of slipping. Id.
The plaintiff includes as an exhibit to his complaint “[a] true and correct
copy of a memo of what Banks got over the past 2 years and what he didn’t get
while at WSPF.” Dkt. No. 1 at 2-3. The memo states, in its entirety:
ADA accommodations include:
ADA equipped cell (hand rails and larger floor space).
Elastic cornered bed sheets.
Modified your floor to make it less slippery.
Adjusted shower spray angle.
Installed an ADA compliant shower bench so that you may sit
while showering.
Installed a toilet paper roll holder.
Provided non-slip shower mat.
Provided extra towels.
Provided a shower brush available to you during shower times
Provided soft suction cup brush for sink to wash hand
Inmate caretaker is also available to help you with your daily
needs.
Food service provides food to accommodate your needs
Given lower bunk accommodation
HSU also has regular appointments with you to address
personal care needs.
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Inmate was denied the device that he arrived with because of
security concerns (It contained long metal screws). It cannot
properly and safely be mounted to your cell wall.
Per the policy: reasonable accommodation includes but is not
limited to, adjustments, adaptations, or modifications to
facilities or operation with a facility, or the use of modified or
auxiliary aids that enable a qualified person with a disability
equal access, participation, and benefits of programs and
activities.
Dkt. No. 1-1 at 28.
The plaintiff argues that he should have been provided the same things
at WSPF as he had received at Dodge. Dkt. No. 1 at 3. He alleges that “[u]pon
information and belief,” the staff at Dodge Correctional told him that he would
receive the same “medical appliances” at WSPF that he had received at Dodge.
Id. He states that he could not wash his own back, and WSPF staff told him to
let another inmate wash his arm and back. Id. He states that he continued to
complain, yet the defendants refused (and continue to refuse) to give him any
help or assistance. Id.
B. The Court’s Analysis
The plaintiff alleges two causes of action in his complaint. First, he
alleges that the defendants were deliberately indifferent in violation of the
Eighth Amendment, and cites Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Second, he argues that the defendants violated the Equal Protection Clause of
the Fourteenth Amendment, and cites to May v. Sheahan, 226 F.3d 876 (7th
7
Cir. 2000).
1.
Eighth Amendment Claim
In his first cause of action, the plaintiff states, “plaintiff alleged
Defendants were in violation of the 8th Amendment Deliberate Indifferent.”
Dkt. No. 1 at 3. He cites the Supreme Court’s decision in Farmer in support of
this claim.
In Farmer, the Supreme Court held that prison officials “must provide
humane conditions of confinement; prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical care . . . .” Farmer, 511
U.S. at 833 (citations omitted). It appears to the court that the plaintiff means
to state a claim that the conditions of his confinement at WSPF violated the
Eighth Amendment’s prohibition against cruel and unusual punishment.
Prison conditions can constitute cruel and unusual punishment, if the
conditions are so severe that they deny an inmate “the minimal civilized
measure of life’s necessities.” Hudson v. McMillian, 503 U.S. 1, 20 (1992); Gillis
v. Litscher, 468 F.3d 488, 491 (7th Cir. 2006). To state a conditions-ofconfinement claim, the plaintiff must allege that: (1) the prison conditions were
serious enough to deny him basic human needs; and (2) the officers acted with
a culpable state of mind, which at the minimum level, requires “deliberate
indifference.” McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1993).
The plaintiff alleges that he could not wash his own arm and back and
that his shower floor was slippery. Adequate facilities to wash are among the
“minimal civilized measure of life’s necessities” that prison officials must afford
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prisoners. Jaros v. Illinois Dept. of Corrections, 684 F.3d 667, 670 (7th Cir.
2012). The Seventh Circuit has held, however, that to state a constitutional
violation, a plaintiff must allege that prison officials denied him access to such
facilities, not just that they made his use of, or access to, those facilities more
difficult. Id. at 671. The plaintiff does not allege that the defendant denied him
access to a shower, or denied him the opportunity to clean his arm and back.
He alleges only that he had trouble using the shower, and couldn’t wash his
arm and back himself.
Even if the court were to construe the plaintiff’s allegations broadly and
find that his difficulties in using the shower and washing himself effectively
denied him access to shower facilities, the plaintiff’s allegations do not support
a finding that the defendants were deliberately indifferent to his needs.
Federal Rule of Civil Procedure 10(c) states that, “[a] copy of a written
instrument that is an exhibit to a pleading is a part of the pleading for all
purposes.” In evaluating the allegations in the plaintiff’s complaint, the court
also must consider the inmate complaints, ICE decisions, memos, and medical
records that the plaintiff attached as exhibits. A plaintiff may plead himself out
of court by including facts in his complaint that defeat his claim. Thompson v.
Godinez, 561 Fed.Appx. 515, 518 (7th Cir. 2014). That is what the plaintiff has
done here.
At the conclusion of his complaint, the plaintiff states that, despite his
many complaints, the defendants “refused to give [him] any help and/or
assistance with anything that has been alleged in this complaint . . . .” Dkt. No.
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1 at 3. But the exhibits the plaintiff attached to the complaint show that,
contrary to the plaintiff’s assertion, the defendants have tried to accommodate
the plaintiff’s needs in a number of ways. They provided him with multiple
scrub brushes, roughed up his shower floor, provided him with a bath mat,
and assigned another inmate to help him with tasks he cannot perform on his
own.
The plaintiff would have preferred “the same things he was provided at
[Dodge],” dkt. no. 1 at 3, but the fact that the defendants did not address the
plaintiff’s needs the way he wanted them to does not mean that they were
deliberately indifferent to those needs. The documents that the plaintiff himself
provided show that the defendants have timely and thoroughly responded to
his requests for assistance. The court will not allow the plaintiff to proceed on a
conditions-of-confinement claim.
2.
Equal Protection Claim
The plaintiff also fails to state an equal protection claim. The Equal
Protection Clause commands that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. CONST. AMEND XIV. To comply
with that clause, governmental entities are generally required to treat all
similarly-situated persons in a similar manner. City of Cleburne v. Cleburne
Living Center, 473 U.S. 432, 439 (1985). “Class of one” equal protection claims
arise without regard to a protected-class status (such as race or gender) but
require that the plaintiff allege that he “has been intentionally treated
differently from others similarly situated and . . . there is no rational basis for
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the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000).
It appears that the plaintiff is alleging that the defendants’ refusal to
provide him with the same accommodations he received at Dodge Correctional
violated his rights under the Equal Protection Clause. That claim fails for two
reasons: First, the plaintiff has not alleged that there were any inmates at
WSPF who were similarly situated to him. In order to state an equal protection
claim, the plaintiff would have had to state facts demonstrating that there were
such similarly-situated inmates at WSPF, and that the WSPF staff gave those
similarly situated inmates accommodations they refused to give to him. He has
not done so.
Second, even if the plaintiff had identified a group of similarly situated
inmates, he would not be able to demonstrate that the defendants did not have
a rational basis for refusing to give him the accommodations he requested. The
exhibits the plaintiff attached to his complaint demonstrate that the defendants
stated a rational basis for refusing to provide the plaintiff with the same
accommodations he had at Dodge—namely, that the items he requested posed
a security risk.
Because the plaintiff has not identified a similarly situated group of
inmates, has not alleged that WSPF treated him differently than those inmates,
and has not demonstrated that any such different treatment had no rational
basis, he has not stated a Fourteenth Amendment equal protection claim.
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III.
Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 4).
The court ORDERS that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prisoner trust
account the $332.41 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 Secretary
or his designee shall identify the payments by the case name and number.
The court ORDERS that the plaintiff’s complaint is DISMISSED under
28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim, and will
enter judgment accordingly. The court DIRECTS the Clerk of Court to
document that the plaintiff has incurred a “strike” under 28 U.S.C. §1915(g).
The court will send copies of this order to the warden of the institution where
the inmate is confined.
This order and the judgment to follow are final. A dissatisfied party 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. of 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).
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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. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2).
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 the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 20th day of June, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge
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