Hill v. Severson et al

Filing 14

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 2/5/2024. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; 8 Plaintiff's Second Motion for Leave to Proc eed Without Prepayment of the Filing Fee is DENIED as moot; agency having custody of Plaintiff to COLLECT the balance of the filing fee as specified. By 2/26/2024, Plaintiff to FILE an amended complaint as provided; failure to timely do so will result in DISMISSAL of this action. See Order. (cc: all counsel, via mail to Orlando F Hill with prisoner amended complaint form and pro se/prisoner guides and to Warden (order only) at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ORLANDO F. HILL,

v.

Plaintiff,

Case No. 23-CV-1302-JPS

ERIC SEVERSON, ANGELA
WOLLENHUPT, and WAUKESHA
COUNTY JAIL,

ORDER

Defendants.
Plaintiff Orlando F. Hill, an inmate confined at Racine Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983 alleging that the
defendants violated his constitutional rights. ECF No. 1. This Order
resolves Plaintiff’s motions for leave to proceed without prepaying the
filing fee and screens his complaint.
1.

MOTIONS FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On January 18, 2024. the Court ordered Plaintiff to pay an initial
partial filing fee of $5.36. ECF No. 12. Plaintiff paid that fee on January 26,
2024. The Court will grant Plaintiff’s motion for leave to proceed without

prepaying the filing fee. ECF No. 2. The Court will deny Plaintiff’s second
motion to proceed without prepayment of the filing fee, ECF No. 8, as moot.
He must pay the remainder of the filing fee over time in the manner
explained at the end of this Order.
2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner 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).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). A complaint must include “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
The complaint must contain enough facts, accepted as true, to “state a claim
for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows
a court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
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the laws of the United States and that whoever deprived him of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
2.2

Plaintiff’s Allegations

Plaintiff names Defendants Sheriff Eric Severson (“Severson”), Jail
Admin. Angela Wollenhupt (“Wollenhupt”), and Waukesha County Jail.
ECF No. 1 at 1. He alleges that they failed to inform him/post warnings
about the “radium/gross alpha levels” and failed to provide alternative
purified/clean water. Id. at 2. Plaintiff was exposed to cancer as a result and
his complaints were ignored from March 13, 2023 until August 17, 2023. Id.
Plaintiff

alleges

“negligence,

poor

training,

inattention

to

duty,

indifference, discrimination, etc.” Id. at 2–3.
2.3

Analysis

The Court finds that Plaintiff may not proceed on an Eighth
Amendment conditions of confinement claim. A prisoner’s claim of
unconstitutional conditions of confinement is analyzed under the Eighth
Amendment’s cruel and unusual punishment clause. See Farmer v. Brennan,
511 U.S. 832, 834 (1994). A prisoner is entitled to live in conditions that do
not amount to “punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).
Detainees are entitled to be confined under humane conditions that provide
for their “basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
“The Constitution does not mandate comfortable prisons, but neither does
it permit inhumane ones[.]” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996).
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To establish a constitutional violation with respect to an inmate’s
living conditions, he must be able to demonstrate both: (1) the conditions
were objectively so adverse that they deprived him “of the minimal
civilized measure of life’s necessities,” and (2) the defendants acted with
deliberate indifference with respect to the conditions. Townsend v. Fuchs, 522
F.3d 765, 773 (7th Cir. 2008) (quoting Farmer, 511 U.S. at 834). “Life’s
necessities include shelter, heat, clothing, sanitation, and hygiene items.”
Woods v. Schmeltz, No. 14-CV-1336, 2014 WL 7005094, at *1 (C.D. Ill. Dec. 11,
2014) (citing Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006)); see also Budd
v. Motley, 711 F.3d 840, 842–43 (7th Cir. 2013). Depriving a prisoner of
drinkable and safe water constitutes an Eighth Amendment conditions of
confinement claim. Smith v. Dart, 803 F.3d 304, 313 (7th Cir. 2015).
The Court does not find that Plaintiff states sufficient factual
allegations to proceed against any defendants for an Eighth Amendment
deliberate-indifference claim. Plaintiff alleges that the water at the jail was
unsafe and exposed him to cancer; however, he does not plead facts to show
that the named defendants were actually aware of this condition. Although
Plaintiff generally claims that his complaints were ignored for long periods,
it is unclear who the complaints were made to and whether the high-level
officials named as defendants had any knowledge of Plaintiff complaints.
Plaintiff’s allegations as currently plead at most show negligence, but
nothing indicates that the named defendants knowingly subjected Plaintiff
to unsafe water. As such, the Court finds that Plaintiff fails to state an Eighth
Amendment claim for deliberate indifference. As indicated, Plaintiff may
state a state-law negligence claim. However, in the absence of a federal
claim, the Court cannot exercise supplemental jurisdiction over a state-law

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negligence claim. See 28 U.S.C. § 1367(c); Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635, 639 (2009).
The Court will also not allow Plaintiff to proceed on a discrimination
claim. Plaintiff includes no factual allegations regarding a discrimination
claim, such as how he was discriminated against and the basis for the
alleged discrimination. Plaintiff fails to plead factual content that allows the
Court to draw the reasonable inference that any defendant is liable for the
misconduct alleged. See Ashcroft, 556 U.S. at 678. As such, Plaintiff may not
proceed on a discrimination claim.
The Court will provide Plaintiff the opportunity to file an amended
complaint on or before February 26, 2024. When writing his amended
complaint, Plaintiff should provide the Court with enough facts to answer
the following questions: (1) Who violated his constitutional rights?;
(2) What did each person do to violate his rights?; (3) Where did each
person violate (4) When did each person violate his rights? Plaintiff’s
amended complaint does not need to be long or contain legal language or
citations to statutes or cases, but it does need to provide the Court and each
Defendant with notice of what each Defendant allegedly did or did not do
to violate his rights.
The Court is enclosing a copy of its amended complaint form and
instructions. Plaintiff must list all of the defendants in the caption of his
amended complaint. He should use the spaces on pages two and three to
allege the key facts that give rise to the claims he wishes to bring, and to
describe which defendants he believes committed the violations that relate
to each claim. If the space is not enough, Plaintiff may use up to five
additional sheets of paper.

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Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
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 (7th
Cir. 1998). In Duda, the appellate court 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). If the amended
complaint is received, it will become the operative complaint in this action,
and the Court will screen it in accordance with 28 U.S.C. § 1915A.
3.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without

prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s second motion for leave
to proceed without prepaying the filing fee, ECF No. 8, be and the same is
hereby DENIED as moot;
IT IS FURTHER ORDERED that the complaint fails to state a
federal claim;
IT IS FURTHER ORDERED that Plaintiff may file an amended
complaint that complies with the instructions in this Order on or before
February 26, 2024. If Plaintiff files an amended complaint by the deadline,
the Court will screen that complaint under 28 U.S.C. § 1915A. If Plaintiff
does not file an amended complaint by the deadline, the Court will dismiss
this case without prejudice based on a lack of subject-matter jurisdiction;
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and a copy of the guides entitled
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“Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro
Se Litigants’ Common Questions,” along with this Order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $339.28 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 case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
Dated at Milwaukee, Wisconsin, this 5th day of February, 2024.
BY THE COURT:

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

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Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, 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
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply 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. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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