Tenner v. Jackson et al

Filing 8

SCREENING ORDER signed by Judge J.P. Stadtmueller on 2/28/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendant David Clarke DISMISSED from action. Milwaukee County Jail correctional officer s Jackson, Velez, and Williams JOINED as defendants; Clerk of Court DIRECTED to update docket accordingly. Plaintiff PERMITTED to proceed against defendants on claim of inadequate conditions of confinement, in violation of the Eighth Amendment. Cop ies of Plaintiff's Complaint and this Order to be electronically SENT to Milwaukee County for service on defendants, who shall FILE a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT the balance of the filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Rondale D. Tenner and Warden at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RONDALE D. TENNER,
Plaintiff,

Case No. 18-CV-232-JPS

SHERRIFF DAVID CLARKE,

ORDER

v.

Defendant.
Plaintiff, who is incarcerated at Green Bay Correctional Institution
(“GBCI”), 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). Plaintiff has
been assessed and paid an initial partial filing fee of $10.67. 28 U.S.C. §
1915(b)(4).
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); 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
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; 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)); 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. (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. 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 first
“identif[y] 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 wellpleaded factual allegations, the Court must “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
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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); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The Court is obliged to give 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 he was temporarily housed at the Milwaukee
County Jail (the “Jail”) from January 18 to January 23, 2018 in order for him
to attend court proceedings in Milwaukee. (Docket #1 at 2). On or around
January 20, the toilet broke and “overflowed with urine and feces.” Id. He
complained about the problem to a correctional officer sometime during the
first shift. Id. The officer, whose last name is Jackson, said he would email
the Jail’s plumber. Id. Plaintiff asked to be moved to a different cell at this
time but was refused even though vacant cells were available in the same
housing unit. Id. at 3.
Plaintiff reports that he became ill as a result of these unsanitary
conditions. Id. Further, he was unable to use the toilet or maintain his
hygiene because the water in the cell had been shut off. Id. He asked to
speak with a supervising officer in the housing unit and was seen later
during the second shift on January 20 by another correctional officer, Velez.
Id. Velez informed Plaintiff that all he could do to address the issue was to
contact the maintenance department. Id.
Later that day, Plaintiff slipped and fell in the feces on the floor of
his cell. Id. This prompted him to again ask for a change of cell. Id. A third
correctional officer, Williams, spoke with Plaintiff and told him she would
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email the plumber. Id. Plaintiff does not report when, if ever, the plumber
fixed or attempted to fix the toilet. See id. He does allege that he was forced
to endure these conditions for three days, apparently until his transfer back
to GBCI on January 23. See id. Plaintiff was seen in the health services unit
at GBCI on January 29 for treatment of the illness he developed because of
the unsanitary conditions at the Jail. Id.
Plaintiff does not identify what claims he seeks to assert based on
these facts. The Court can discern only one potential claim: inadequate
conditions of confinement, in violation of the Eighth Amendment. A
conditions-of-confinement claim requires the plaintiff to prove that a prison
official displayed deliberate indifference to conditions “sufficiently
serious” so as to constitute “‘the denial of the minimal civilized measure of
life’s necessities.’” Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008)
(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Of course, “provid[ing]
a maximally safe environment, one completely free from pollution or safety
hazards,” is not required by the Constitution. Caroll v. DeTella, 255 F.3d 470,
472 (7th Cir. 2001). But at this early stage, the Court finds it appropriate that
such a claim may proceed on Plaintiff’s alleged facts.
However, the Court must amend Plaintiff’s complaint sua sponte as
to naming the proper defendants. Plaintiff has not named as defendants
Jackson, Velez, and Williams, the correctional officers involved in the
relevant events. Instead, he has only named David Clarke (“Clarke”), the
former Milwaukee County Sheriff. Although Clarke oversaw the Jail’s
functioning at a high level, he cannot be liable under Section 1983 simply
because he supervised employees who committed misconduct absent some
allegation that he condoned it or turned a blind eye toward it. Pepper v. Vill.
of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005); Sanville v. McCaughtry, 266 F.3d
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724, 740 (7th Cir. 2001); Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012 (7th Cir.
2000). There is no suggestion that Clarke ever knew about Plaintiff’s plight
or ignored an opportunity to rectify it, and so the Court must dismiss Clarke
as a defendant. It will substitute in the three individual correctional officers
on Plaintiff’s behalf. Fed. R. Civ. P. 21 (“On motion or on its own, the court
may at any time, on just terms, add or drop a party.”). Plaintiff should use
the discovery tools available to him to identify these officers by their first
names.
For the reasons stated above, Plaintiff will be permitted to proceed
on a claim of inadequate conditions of confinement, in violation of the
Eighth Amendment, against Defendants Jackson, Velez, and Williams. 28
U.S.C. § 1915A(b).
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 Defendant David Clarke be and
the same is hereby DISMISSED from this action;
IT IS FURTHER ORDERED that Milwaukee County Jail
correctional officers Jackson, Velez, and Williams be and the same are
hereby JOINED as defendants in this action, and the Clerk of the Court
should update the Court’s docket accordingly;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between Milwaukee County and this Court, copies of Plaintiff’s
complaint and this Order are being electronically sent today to Milwaukee
County for service on Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between Milwaukee County and this Court, Defendants shall
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file a responsive pleading to the complaint within sixty (60) days of
receiving electronic notice of this Order;
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 Plaintiff’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, county, state, or federal, 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.1 If
Plaintiff is no longer incarcerated at a Prisoner E-Filing institution, he will
be required to submit all correspondence and legal material to:

The Prisoner E-Filing Program is mandatory for all inmates of Columbia
Correctional Institution, Dodge Correctional Institution, Green Bay Correctional
Institution, Oshkosh Correctional Institution, Waupun Correctional Institution,
and Wisconsin Secure Program Facility.
1

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Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter.
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 28th day of February, 2018.
BY THE COURT:

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

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