Preview:

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SONIA WILLIAMS,
Plaintiff,
v.                                                                                         Case No. 09-CV-1147
TAYCHEEDAH CORRECTIONAL INSTITUTION,
LT. AUBERTSON, C.O. NUTTER, and C.O. DODD,
Defendants.
ORDER
The plaintiff, Sonia Williams, who is incarcerated at Taycheedah Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that her civil
rights were violated.  This matter comes before the court on the plaintiff's petition to
proceed in forma pauperis.
The plaintiff is required to pay the statutory filing fee of $350.00 for this action.
See 28 U.S.C. § 1915(b)(1).   If a prisoner does not have the money to pay the filing
fee, she can request leave to proceed in forma pauperis.   The plaintiff has filed a
certified  copy  of  her  prison  trust  account  statement  for  the  six-month  period
immediately preceding the filing of her complaint, as required under  28 U.S.C.
§ 1915(a)(2), and has been assessed and paid an initial partial filing fee of $11.95.
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
[she] is entitled to relief.”   Fed. R. Civ. P. 8(a)(2).   It is not necessary for the plaintiff
to plead specific facts and her 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, ___
U.S. ___, 129 S. Ct. 1937, 1949 (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.”  Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S.
at 570).   “A claim has facial plausibility when the plaintiff pleads factual content that
2




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.
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, 129 S.
Ct. at 1950.  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) she 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 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, 127 S. Ct. 2197, 2200 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The  plaintiff  alleges  that  when  she  arrived  at  Taycheedah  Correctional
Institution on May  23,  2008, she was issued a white pair of shoes with velcro
fasteners that was three sizes too small.  The plaintiff wears a size 9½ and the state-
3




issued shoes were size 6½.  She reported this to staff and was told that they did not
have  her  size.    Defendant  Dodd  forced  the  plaintiff  to  wear  the  small  shoes
“properly” and to stop walking on the backs of shoes.   Defendant Nutter told the
plaintiff she had to walk in them the correct way even though the shoes were causing
her feet, ankle, and hip to experience extreme discomfort.  Lt. Albertson stated there
were no shoes anywhere in the prison that would fit her size, so she was stuck with
the small shoes.  It took three days for the plaintiff to get the right sized pair of shoes
because of the Memorial Day holiday.
The plaintiff brings claims under the Eighth and Fourteenth Amendments
based on the suffering she had to endure.   For relief, she seeks $300,000 for the
pain in her feet, her hip problems, and punitive damages for forcing her to wear the
small shoes for three days.
To plead an Eighth Amendment claim, the plaintiff need only allege that prison
officials  deliberately  ignored  conditions  of  confinement  that  failed  to  meet
contemporary requirements of minimal decency.  Townsend v. Fuchs, 522 F.3d 765,
773 (7th Cir. 2008); Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001).  Minimal
decency  requires  the  prison  to  provide  reasonably  adequate  sanitation  and
protection from the cold.   See Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006);
Dixon v. Godinez, 114 F.3d 640, 643 (7th Cir. 1997).
The plaintiff alleges that wearing the too-small shoes for three days was
uncomfortable,  even  painful,  and  no  doubt  it  was.    However,  an  objectively,
sufficiently serious injury is one that deprives an inmate of “the minimal civilized
4




measure of life’s necessities,   see Rhodes v. Chapman, 452 U.S. 337, 347 (1981),
and only extreme deprivations will support an Eighth Amendment claim.    Delaney,
256 F.3d at 683.   The plaintiff does not allege an objectively sufficiently serious
deprivation to implicate the Eighth Amendment.  See Ashann-Ra v. Virginia, 112 F.
Supp. 2d 559, 563-64 (W .D. Va. 2000) (prisoner did not state Eighth Amendment
claim based on allegations that correctional officers failed to provide him with well-
fitting shoes where he did not allege facts indicating that he suffered any serious
physical injury to his feet or any other part of his body as a result of officers’ failure
to provide him with well-fitting shoes for 24 days and did not allege facts indicating
that correctional officers exhibited deliberate indifference in failing to provide him
with properly fitting shoes more quickly); Wallace v. Carver, 2008 WL 4154413 (D.
Utah 2008) (unpublished) (prisoner who alleged that he was forced to wear shoes
that were too small for about one month, while correct-sized shoes were being
ordered, failed to state an Eighth Amendment claim); see also Wellons v. Townley,
528 F. Supp. 73, 75 (W .D. Va. 1981) (requirement that prisoner wear uncomfortably
small shoes for temporary time in order to visit dentist was not basis of cognizable
action).
Additionally, the plaintiff alleges that her new shoes arrived at the prison three
days after it was discovered that correct-sized shoes were not available anywhere
in the institution.  Thus, the plaintiff’s allegations do not indicate the defendants were
aware of and disregarded the problem, but rather, the defendants were both aware
5




of  and  remedied  the  problem.    As  such, the  plaintiff  does  not  allege  that  the
defendants acted with deliberate indifference.
This plaintiff has provided no arguable basis for relief, having failed to make
any rational argument in law or fact to support her claims.   See House v. Belford,
956 F.2d 711, 720 (7th Cir. 1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308
(7th Cir. 1988), aff'd sub nom. Neitzke v. Williams, 490 U.S. 319 (1989)).
IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed
in forma pauperis (Docket #2) be and the same is hereby GRANTED;
IT  IS  FURTHER  ORDERED  that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to
state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate
has brought an action that was dismissed for failure to state a claim under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1);
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate
has incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department
of Corrections or his designee shall collect from the plaintiff's prison trust account the
$326.10 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
6




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.
IT  IS  FURTHER  ORDERED  that  the  Clerk  of  Court  enter  judgment
accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant
Attorney  General, Wisconsin  Department of Justice, P.O. Box  7857, Madison,
Wisconsin, 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken in
good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide
arguments supporting his appeal.
Dated at Milwaukee, Wisconsin, this 25th day of March, 2010.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
7

Download 28384.pdf

Wisconsin Law