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Widmer v. Butler

United States District Court, S.D. Illinois

August 5, 2014

MICHAEL WIDMER, #B-30985, Plaintiff,



This matter is before the Court for review of Plaintiff Michael Widmer's motion for leave to proceed in forma pauperis ("IFP Motion") (Doc. 3) and his complaint (Doc. 1). Plaintiff has accumulated at least three "strikes" by filing lawsuits that were dismissed for failure to state a claim upon which relief may be granted or for raising frivolous claims.[1] Under the circumstances, he may not proceed in forma pauperis in a new civil action unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g).

The pleadings suggest that Plaintiff faces imminent danger of serious physical harm as a result of Defendants Pelker, Mezo, and Lindenberg's conduct. For this reason, the pending IFP Motion shall be granted, and he shall be allowed to proceed with his Eighth Amendment (Count 1) and retaliation (Count 2), and conspiracy (Count 3) claims against these Defendants. The warden, Defendant Butler, shall remain in this action in her official capacity, based only Plaintiff's request for injunctive relief.However, all other claims shall be severed from this action, resulting in the termination of all remaining defendants from this case.

Merits Review Under 28 U.S.C. § 1915A

Under 28 U.S.C. § 1915A, the Court is required to promptly screen prisoner complaints to filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams , 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross "the line between possibility and plausibility." Id . at 557. Conversely, a complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters , 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross , 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts "should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements." Id . At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv. , 577 F.3d 816, 821 (7th Cir. 2009).

The Complaint

Plaintiff, who is currently incarcerated at Menard Correctional Center ("Menard"), filed this lawsuit pursuant to 42 U.S.C. § 1983 (Doc. 1). He sues thirteen Menard officials for constitutional deprivations[2]that allegedly occurred in 2013-14. Plaintiff seeks declaratory judgment, monetary damages, and injunctive relief (Doc. 1, p. 11).

In the complaint, Plaintiff claims that three Menard officials, including Defendants Pelker, Mezo, and Lindenberg, threatened him with physical harm and deprived him of prescription medication in 2014 (Doc. 1, pp. 7-10). On July 23, 2014, Plaintiff was transferred to a new cell (Doc. 1, p. 8). There, Defendant Pelker approached Plaintiff and said, "[Y]ou are going to die in here mother fu**er" (Doc. 1, p. 8). While saying this, Defendant Pelker ran a finger across his own throat. Defendant Lindenberg then ordered Plaintiff to "cuff up" and removed him from the cell, while Defendant Pelker and other officers confiscated Plaintiff's property. When Plaintiff told Defendant Lindenberg that he needed his medication for asthma and high blood pressure, Defendant Lindenberg stated, "[Y]ou['re] not getting anything" (Doc. 1, p. 8).

Also on July 23, 2014, Defendant Mezo entered Plaintiff's cell. As he opened the door, Defendant Mezo stated, "[G]o to the back of the cell before I beat your ass" (Doc. 1, p. 8). Defendant Mezo then told another officer that Plaintiff "is the bit** who sued [him]" (Doc. 1, p. 8). The following day, Plaintiff asked Defendant Mezo for his asthma and blood pressure medications (Doc. 1, p. 10). Defendant Mezo stated, "I told you yesterday, you piece of sh*t, you don't (sic) have anything coming, so don't (sic) ask" (Doc. 1, p. 10). When Plaintiff asked Defendant Mezo if he could speak with a mental health professional, Defendant Mezo denied his request. Plaintiff now sues Defendants Pelker, Mezo, and Lindenberg, for failing to protect him and for denying him access to his prescription medications. He also asserts conspiracy and retaliation claims against these defendants.

Plaintiff sues ten other Menard officials for conspiring to deprive him of access to the courts and for interfering with his mail, in retaliation for filing lawsuits against prison officials (Doc. 1, pp. 4-7). The complaint chronicles incidents of mail interference, both personal and legal, that date back to 2013 (Doc. 1, p. 4). Plaintiff also alleges that he has been unable to prosecute any of his twelve pending lawsuits in federal court since June 5, 2014, because he has been deprived of electronically filed orders since that date (Doc. 1, pp. 6, 9). In addition, he claims that these defendants have made retaliatory comments to him.[3] Defendants Butler, Watson, Lashbrook, Westfall, Best, Mayer, New, Clendenen, Knust, and Dillman are named in connection with Plaintiff's claims of conspiracy, mail interference, denial of access to the courts, and retaliation.


Plaintiff shall be allowed to proceed with his Eighth Amendment claim (Count 1) against Defendants Pelker, Lindenberg, and Mezo for exhibiting deliberate indifference to his serious medical needs and for failing to protect him from harm. Plaintiff shall also be allowed to proceed with a retaliation claim (Count 2) and a civil conspiracy claim (Count 3) against these same defendants. Because the complaint seeks injunctive relief, Defendant Butler shall remain in this action, based only on this request for relief. However, all other claims against all remaining defendants shall be severed from this action, for the reasons set forth below.

Count 1

Typically, threats of mistreatment are not compensable under the Eighth Amendment. See Babcock v. White , 102 F.3d 267, 272 (7th Cir. 1996). This is because, standing alone, "simple verbal harassment does not constitute cruel and unusual punishment...." DeWalt v. Carter , 224 F.3d 607, 612 (7th Cir. 2000) (citing Ivey v. Wilson , 832 F.2d 950, 955 (6th Cir. 1987)); Antoine v. Uchtman , 275 Fed.App'x 539, 541 (7th Cir. 2008) (racist and threatening statements by state prison guards do not violate a prisoner's constitutional rights, because "the Constitution does not compel guards to address prisoners in a civil tone using polite language"); Patton v. Przybylski , 822 F.2d 697, 700 (7th Cir. 1987) (derogatory remarks do not constitute constitutional violations); McDowell v. Jones , 990 F.2d 433, 434 (8th Cir. 1993); Oltarzewski v. Ruggiero , 830 F.2d 136, 139 (8th Cir. 1987) (prison official's use of vulgar language did not violate inmate's civil rights); Martin v. Sargent , 780 F.2d 1334, 1338 (8th Cir. 1985) (verbal threats by correctional officer do not amount to a constitutional violation).

With that said, the Court is required to consider each case based on its own facts, and threats of violence may provide evidence of a defendant's deliberate indifference. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause ...

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