West v. McCaughtry

962 F. Supp. 1184, 1997 U.S. Dist. LEXIS 7021, 1997 WL 260096
CourtDistrict Court, E.D. Wisconsin
DecidedMay 16, 1997
DocketNo. 97-C-0070
StatusPublished

This text of 962 F. Supp. 1184 (West v. McCaughtry) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
West v. McCaughtry, 962 F. Supp. 1184, 1997 U.S. Dist. LEXIS 7021, 1997 WL 260096 (E.D. Wis. 1997).

Opinion

DECISION AND ORDER

MYRON L. GORDON, District Judge.

Rufus West, currently incarcerated at the Waupun Correctional Institution, filed this civil rights complaint under 42 U.S.C. § 1983 on January 27, 1997. Along with his complaint, the plaintiff filed a petition to proceed in forma pauperis. Mr. West filed an amendment to his complaint on March 19, 1997.

Pursuant to 28 U.S.C. § 1915(b)(1), enacted on April 26, 1996, the plaintiff is required to pay the statutory filing fee of $150.00 for this action. If a prisoner does not have the money to pay the filing fee, he can request leave to proceed in forma pauperis. To proceed with an action in forma pauperis, the prisoner must complete a petition and affidavit and return it to the court with a certified copy of the prisoner’s trust account statement showing the transactions for the previous six months. The court then assesses, and when funds exist, collects from the plaintiff at the time the action is filed an initial partial filing fee of 20% of the average monthly deposits or the average monthly balance in the prisoner’s trust account for the six-month period immediately preceding the filing of the complaint.

On February 7, 1997, this court assessed an initial partial filing fee, based on Mr. West’s filing of a copy of his prisoner trust account statement, of $5.49, pursuant to 28 U.S.C. § 1915(b)(1)(B). The plaintiff paid that amount on March 6, 1997. Notwithstanding the fact that the plaintiff has paid the initial filing fee, “the court shall dismiss the case” 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 form such relief. 28 U.S.C. § 1915(e)(2)(B).

A claim is legally frivolous when there is no arguable basis for relief in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1732-33, 118 L.Ed.2d 340 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989)); Casteel v. Pieschek, 3 F.3d 1050, 1056 (7th Cir.1993). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory of where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832-33.

A court may only dismiss a complaint, or a portion thereof, for a failure to state a claim, when it appears beyond a doubt that the party asserting the claim can prove no facts that would entitle him to relief. Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 [1186]*1186(1984); Hamlin v. Vaudenberg, 95 F.3d 580, 583 (7th Cir.1996). The court must accept all well-pleaded factual allegations as true and must draw reasonable inferences in favor of the party setting forth the claim. Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 791 (7th Cir.1996). I am obligated to give Mr. West’s pro se allegations, however inartfully pleaded, a liberal construction. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam); Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir.1996).

I. Plaintiffs Allegations

Mr. West’s pleadings are laden with detailed factual allegations which, for current purposes, must be assumed to be true. Bowman v. City of Franklin, 980 F.2d 1104, 1107 (7th Cir.1992), cert. denied, 508 U.S. 940, 113 S.Ct. 2417, 124 L.Ed.2d 639 (1993). However, I do not believe it necessary to repeat the litany of wrongs that he claims were visited upon him by a large number of individuals (54). Instead I propose to state in concluso-ry fashion whether his charges are legally sufficient to state a claim against one or more of the defendants.

Mr. West has arguably stated claims for medical mistreatment, physical abuses, and improper disciplinary action against the following defendants: “Dr. Jane Doe,” Dr. Bel-gado, Captain Dittmann, Sergeant Renfrow, Mr. Gasser, Captain Garro, Sergeant Stre-low, Sergeant Sleezlag, Mr. Daley, Beth Ditt-man, Warden McCaughtry, Mr. Franklin, Mr. Cummings, Mr. Engerman, Mr. Hui-bregtse, Mr. Sullivan, Sergeant Gaybay, Mr. Saleaz, Mr. Hendricks, Mr. Schoenberger, Captain Strahota, Sergeant Tarr, Mr. Gla-mann, Mr. Kirker, Mr. Hummelmeier, Lieutenant Thurmer, Mr. Brown, Mr. Weigel, Sergeant Koehler, Captain Fuchs, Lieutenant Jansen, Mr. Heidemann, Mr. Wolf, Mr. Cross, Mr. Hintz, Ms. Vick, Mr. Russ, Mr. Guest, Sergeant Rhodes, Mr. Wendlant, Mr. Dutzle, Mr. Vander Ark, and Mr. Bie.

He has also charged, if true, a legally adequate claim of denial of procedural due process on the part of the following defendants: the Waupun Business and Records Office, the two unnamed defendants who cut short his in-person and telephone conversations with his attorney, Mr. Glamann, Captain Dittman, Sergeant Sleezlag, Mr. Hui-bregtse, and Mr. Russell.

Finally, Mr. West has stated a claim against the mail department of the Waupun Correctional Institution for a violation of his First Amendment rights of free speech and association.

The following claims, however, fail to state a claim upon which relief can be granted, and will be dismissed: his claims against Captain Dittman and Sergeant Shackratt for failure to seek medical attention on August 21,1996, his claims for threats and verbal assaults against defendants Tarr, Kempen, Sleezlag, Kirker, and Russell, his claim against Sergeant Sleezlag for racial insults, his claim against Nurse Schepp for her medical treatment of Mr. West on August 12, 1996, his claims against defendants Vick, Russ, Guest, Rhodes, Wendlant, and Dutzle for deprivation of a phone call, recreation, bath water, reading materials, and clean clothes or bedding, his claim against defendant Tarr for deprivation of soup, for pouring pepper on Ms food, and for shaking his tray of food, his claim against defendant Russell for failure to return Mr.

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Related

Haines v. Kerner
404 U.S. 519 (Supreme Court, 1972)
Hishon v. King & Spalding
467 U.S. 69 (Supreme Court, 1984)
Neitzke v. Williams
490 U.S. 319 (Supreme Court, 1989)
Denton v. Hernandez
504 U.S. 25 (Supreme Court, 1992)
Hartford Fire Ins. Co. v. California
509 U.S. 764 (Supreme Court, 1993)
Jerome MacLin v. Dr. Freake
650 F.2d 885 (Seventh Circuit, 1981)
Michael C. Antonelli v. Michael F. Sheahan
81 F.3d 1422 (Seventh Circuit, 1996)
Kirsch v. Smith
853 F. Supp. 301 (E.D. Wisconsin, 1994)
Casteel v. Pieschek
3 F.3d 1050 (Seventh Circuit, 1993)
Bowman v. City of Franklin
980 F.2d 1104 (Seventh Circuit, 1992)
Bowman v. City of Franklin
508 U.S. 940 (Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
962 F. Supp. 1184, 1997 U.S. Dist. LEXIS 7021, 1997 WL 260096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/west-v-mccaughtry-wied-1997.