Adell v. State of Wisconsin Department of Corrections, et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 4/18/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 7 , 8 Plaintiff's Motions to Waive the Initial Partial Filing Fee GRANTED. 1 Plaintiff� 39;s Complaint STRICKEN; Plaintiff to file amended complaint by 5/2/2017. Agency having custody of Plaintiff to collect balance of filing fee from Plaintiff's prison trust account. See Order for further details. (cc: all counsel, via mail to Mark Anthony Adell and Warden at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARK ANTHONY ADELL,
Plaintiff,

Case No. 17-CV-448-JPS

v.
RANDALL HEPP, CHRIS
KRUEGER, MARK SCHOMISCH,
and BRUCE SIEDSCHLAG,

ORDER
Defendants.

Plaintiff, who is incarcerated at the Wisconsin Secure Program Facility,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the Court on Plaintiff’s
motion to proceed in forma pauperis. (Docket #2). The Court originally
assessed Plaintiff an initial partial filing fee of 85 cents. (Docket #5); 28 U.S.C.
§ 1915(b)(4). However, Plaintiff filed motions to waive payment of the initial
partial filing fee, arguing that he has insufficient funds in his trust account
and that prison officials will not allow him to overdraft the account or take
a legal loan to pay the fee. (Docket #7 and #8).
Although the records initially presented to the Court suggested that
Plaintiff had the ability to pay an initial partial filing fee, the Court credits his
representations in his motion that, in reality, he cannot. The Court therefore
finds that Plaintiff does not have the assets or means to pay the initial partial
filing fee originally assessed. Because the Prison Litigation Reform Act
mandates that a prisoner will not be prohibited from bringing a civil action

for the reason that he lacks the assets and means to pay an initial partial filing
fee, 28 U.S.C. § 1915(b)(4), Plaintiff will be granted a waiver of payment of
the initial partial filing fee in this case. However, he is still obligated to pay
the full filing fee pursuant to the statutory formula set forth in 28 U.S.C. §
1915(b)(2). See id. § 1915(b)(1).
Having determined that Plaintiff need not pay the initial partial filing
fee, the Court next turns to screening his complaint. The Court is required to
screen complaints brought by prisoners seeking relief against a governmental
entity or an officer or employee of a governmental entity. Id. § 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. Id. § 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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
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

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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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Christopher v. Buss, 384 F.3d 879,
881 (7th Cir. 2004). 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. “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. The complaint allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.
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 then “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

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Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); 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. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff alleges that the relevant events occurred while he was
incarcerated at Foxlake Correctional Institution (“FCI”), where he was housed
from March 11, 2014, until January 24, 2017. (Docket #1 at 5). Plaintiff claims
he has chronic ulcerative colitis as a complication of Crohn’s disease. Id. at 3.
According to Plaintiff, this condition means that he has to use the restroom
often and that the need to do so arises urgently and without warning. Id. In
his view, he needs constant access to toilet facilities on demand to avoid the
possibility of incontinence. Id.1
In this case, Plaintiff claims that the warden and other high-level
prison officials have created a policy of limiting toilet access to inmates
during their recreation time. Id. at 5. The recreation facility contains both a
gym and a music room. Id. Recreation periods last one hour, and inmates can
stay for the whole hour or leave at the thirty-minute mark. Id. If an inmate
leaves the recreation period for any reason, he may not return. Id. Further,
during recreation periods no inmate is allowed access to a toilet. Id. Plaintiff
was notified of this policy at the time of his intake into FCI. Id. Plaintiff

1

Plaintiff is proceeding on other claims arising from his incarceration at FCI in
another action before this Court. Adell v. Hepp, Case No. 17-CV-267 (E.D. Wis.). The
allegations of this case were part of the original complaint in that case, but the
Court dismissed that complaint because it violated the joinder rules as explained
in George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). Plaintiff subsequently brought
this separate action raising several claims he chose not to pursue in Case No. 17CV-267.

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decided not to attend recreation periods at all because he knew he would be
denied toilet access and, if he had to leave to use the toilet, he could not
return. Id. Plaintiff says that he had a meeting with Defendant Bruce
Seidschlag (“Seidschlag”) around June 2015, during which Seidschlag
forcefully asserted that no exception to the toilet-access ban during recreation
time would be made for Plaintiff despite his bowel condition. Id. at 6.
Plaintiff lodged an inmate grievance on the matter in December 2016, but the
grievance was dismissed at each level of review. Id.
Plaintiff identifies several legal claims which he believes arise from his
factual allegations. These include: (1) deliberate indifference to his need for
toilet access, in violation of the Eighth Amendment; (2) deprivation of his
rights without due process of law, in violation of the Fourteenth Amendment;
(3) denial of equal protection of the law, in violation of the Fourteenth
Amendment; and (4) denial of reasonable accommodations for his bowel
conditions, in violation of the Americans with Disabilities Act (“ADA”)
and/or the Rehabilitation Act. Id. at 4.
None of Plaintiff’s claims state a colorable basis for relief. First, to state
a claim under the Eighth Amendment, the plaintiff’s allegations must raise
the inference that he was denied the “minimal civilized measure of life’s
necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Here, Plaintiff was,
at worst, denied toilet access for one hour each day, which does not raise
constitutional concerns. See Jaros v. Ill. Dep’t of Corr., 684 F.3d 667, 670–71 (7th
Cir. 2012) (affirming dismissal of Eighth Amendment claim where absence
of grab bars in shower did not deprive inmate of ability to wash but only
made it more difficult). In fact, Plaintiff was only denied toilet access if he

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chose to attend recreation time, which he says he did not do. In reality,
although he mentions the Eighth Amendment in passing in his complaint, it
appears that Plaintiff’s true claim is that his disabilities should have been
better accommodated. See Strominger v. Brock, 592 F. App’x 508, 511 (7th Cir.
2014) (on claim that shower chairs should have been provided, “the record
suggests at most not that [the plaintiff] was denied life’s necessities but only
that he did not receive the level of accommodation that he wished”).2
Next, Plaintiff fails to state a claim for deprivation of due process of
law. To the extent he believes that he was denied due process by being
subjected to the bathroom ban, this claim must fail because he was notified
of the policy from the very start of his incarceration at FCI and was permitted
to (and did) object to it. Dusenbery v. United States, 534 U.S. 161, 167 (2002)
(observing that procedural due process generally requires only “notice and
an opportunity to be heard”). Further, to the extent Plaintiff complains that
his inmate grievances were erroneously denied, he has no due process right
to gain relief through the grievance process. Owens v. Hinsley, 635 F.3d 950,
953 (7th Cir. 2011) (“Prison grievance procedures are not mandated by the
First Amendment and do not by their very existence create interests protected

2

Although he did not identify such a claim in his complaint, the Court further
notes that Plaintiff cannot maintain an Eighth Amendment claim of cruel and
unusual punishment based on deprivation of exercise. The Seventh Circuit has
held that denial of exercise without justification or for extended periods may
violate the Constitution, see Delaney v. Detella, 256 F.3d 679, 683–84 (7th Cir. 2001),
but here no prison official denied Plaintiff access to the exercise equipment. Unlike
most cases, in which segregation leads to an inability to exercise, here Plaintiff was
able to use the recreational facilities but chose not to because he felt he needed
greater accommodation for his bowel condition. This cannot support a claim of
cruel and unusual punishment.

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by the Due Process Clause, and so the alleged mishandling of [the plaintiff’s]
grievances by persons who otherwise did not cause or participate in the
underlying conduct states no claim.”). Plaintiff states no due process claim
where he merely files a grievance and disagrees with the outcome. See
Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir. 2005). Thus, no due process claim
arises from Plaintiff’s allegations.
Third, Plaintiff’s equal protection claim cannot proceed because the
Supreme Court has not recognized individuals with bowel diseases, like
Plaintiff, as constituting a suspect class under the Fourteenth Amendment. See
Mlaska v. Schicker, Case No. 15-cv-00918-MJR, 2015 WL 6098733, at *11 (S.D.
Ill. Oct. 16, 2015) (finding that group of inmates with a certain type of
medical condition did not constitute a suspect class). Where a non-suspect
class is implicated in such a claim, prison administrators are constitutionally
entitled to treat prisoners differently “as long as the unequal treatment is
rationally related to a legitimate penological interest.” Flynn v. Thatcher, 819
F.3d 990, 991 (7th Cir. 2016). A concern for security and order during
recreation time, including keeping an eye on inmates moving freely about
during recreation, could have rationally animated the bathroom ban. Thus,
equal protection principles afford Plaintiff no relief. See Al-Alamin v. Gramley,
926 F.3d 680, 686 (7th Cir. 1991) (noting that prisons have legitimate interests
in security, crime deterrence, and prisoner rehabilitation).
The result is the same even when Plaintiff’s allegations are construed
as a “class of one” equal protection claim. A “class of one” claim arises when
a plaintiff alleges that he has been “intentionally treated differently from
others similarly situated and that there is no rational basis for the difference

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in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Plaintiff’s allegations make clear that he was treated just like every other
prisoner with respect to recreation time; indeed, the thrust of his complaint
is that he should have received different treatment because of his medical
condition. Thus, he was not intentionally treated differently from anyone
else, and his equal protection claim must be dismissed.
Finally, because Defendants are all individual employees of the
Wisconsin Department of Corrections, they are not amenable to suit under
the ADA or the Rehabilitation Act. Jaros, 684 F.3d at 670; Garcia v. S.U.N.Y.
Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). Thus, these claims
must also be dismissed.
Despite the failings in the instant complaint, the Court will permit
Plaintiff an opportunity to amend it. The Court provides several instructions
Plaintiff may find helpful as he crafts an amended complaint. First, the
amended complaint supersedes the prior complaint and must be complete in
itself without reference to the original complaint. See Duda v. Bd. of Educ. of
Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). In
Duda, the Seventh Circuit emphasized that in such instances, the “prior
pleading is in effect withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted); see also Pintado v. Miami-Dade
Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader’s averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,

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1215 (11th Cir. 2006)). If an amended complaint is received, it will be screened
pursuant to 28 U.S.C. § 1915A.
Second, in order to make out a prima facie case under both Title II of
the ADA and the Rehabilitation Act, a plaintiff must show: (1) that he suffers
from a disability as defined in the statutes, (2) that he is qualified to
participate in the program in question, and (3) that he was either excluded
from participating in or denied the benefit of that program based on his
disability. Jackson v. City of Chicago, 414 F.3d 806, 810 (7th Cir. 2005).3 These
statutes protect against both intentional discrimination and failure to make
reasonable accommodations for the plaintiff’s disability. Wis. Cmty. Serv. v.
City of Milwaukee, 465 F.3d 737, 746 (7th Cir. 2006). In the prison context,
whether accommodations are reasonable must be judged “in light of the
overall institutional requirements,” including “[s]ecurity concerns, safety
concerns, and administrative exigencies.” Love v. Westville Corr. Ctr., 103 F.3d
558, 561 (7th Cir. 1996); 28 C.F.R. § 35.130(h). Determining the reasonableness
of a particular accommodation, especially in the prison context, is “highly
fact-specific” and determined on a case-by-case basis. Dadian v. Vill. of
Wilmette, 269 F.3d 831, 838–39 (7th Cir. 2001). As noted above, prison officials
sued in their individual capacities are not amenable to suit under either
statute, but such claims can be made against the state agency in charge of the
prison.
Third, it is important to appreciate the limited scope of any potential
ADA or Rehabilitation Act claim. Only if Plaintiff can show that Defendants
3

The ADA applies to state prisons, Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206,
213 (1998), and because all such institutions receive federal funds, the
Rehabilitation Act also applies, Jaros, 684 F.3d at 670.

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intentionally discriminated against him can he recover damages, and even
then they can only be compensatory, not punitive, damages. Phipps v. Sheriff
of Cook County, 681 F. Supp. 2d 899, 917 (N.D. Ill. 2009); CTL ex rel. Trebatoski
v. Ashland Sch. Dist., 743 F.3d 524, 528 (7th Cir. 2014). Additionally, to the
extent he seeks injunctive or declaratory relief in order to reform FCI’s
policies, he must show that he is likely to be transferred back to FCI in the
future. Otherwise, these elements of his claims are moot. Higgason v. Farley,
83 F.3d 807, 811 (7th Cir. 1996).
With these preliminary instructions given for Plaintiff’s benefit, the
Court leaves it to him to submit an amended complaint that presents
actionable claims. If Plaintiff does not submit an amended complaint by the
deadline set forth below, he is warned that this case may be dismissed for
failure to prosecute. Civ. L. R. 41(c).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motions to waive the
initial partial filing fee (Docket #7, #8) be and the same are hereby
GRANTED;
IT IS FURTHER ORDERED that the complaint submitted on March
28, 2017 (Docket #1) be and the same is hereby STRICKEN;
IT IS FURTHER ORDERED that Plaintiff is directed to file an
amended complaint on or before May 2, 2017 which cures the defects in the
original complaint as described herein;

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IT IS FURTHER ORDERED that the agency having custody of the
prisoner shall collect from his institution trust account the 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
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 a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, Plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. The
Prisoner E-Filing Program is in effect at Dodge Correctional Institution,
Green Bay Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility and, therefore, if Plaintiff is no longer
incarcerated at any of these institutions, he will be required to submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

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Plaintiff is further advised that failure to make a timely submission
may result in the dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change
of address. Failure to do so could result in orders or other information not
being timely delivered, thus affecting the legal rights of the parties.
Dated at Milwaukee, Wisconsin, this 18th day of April, 2017.
BY THE COURT:

_________________________________
J.P. Stadtmueller
U.S. District Judge

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