Summary
This United States District Court order grants an incarcerated pro se plaintiff’s motion to proceed without prepaying filing fees and waives the initial partial fee. The court screens the plaintiff’s Section 1983 complaint alleging Eighth Amendment violations due to verbal harassment by a prison lieutenant. Finding that unprofessional comments do not rise to the level of a constitutional violation and that amendment would be futile, the court dismisses the case for failure to state a claim. The order also outlines the PLRA's three-strikes rule and appellate procedures.
Topics
Practice areas
Questions Presented
- Whether the plaintiff's allegations that a prison official repeatedly made insulting and sexually related comments stated an Eighth Amendment claim under 42 U.S.C. § 1983.
- Whether the complaint should be dismissed at PLRA screening for failure to state a claim.
- Whether the plaintiff should be allowed to amend his complaint.
- Whether the plaintiff was entitled to an additional extension of time to pay the initial partial filing fee.
Holdings
- The alleged comments, although unprofessional and unacceptable, were not sufficiently extreme or severe to constitute an Eighth Amendment violation.
- The complaint failed to state a claim under § 1983 because it did not plausibly allege deprivation of a constitutional right.
- The plaintiff was not entitled to amend because amendment would be futile.
- The court denied the requested five-month extension but waived the initial partial filing fee and allowed the plaintiff to proceed without prepaying the filing fee.
Key quotations
“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.” (Analysis, section II.A)
“Except in exceptional circumstances, unprofessional comments or verbal abuse from prison officials do not violate the Constitution.” (Analysis, section II.C)
“The court ORDERS that this case is DISMISSED under 28 U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim.” (Conclusion)
Factual background
Dubrovin was incarcerated at the Wisconsin Resource Center and alleged that, while he was incarcerated at Waupun Correctional Institution, Lieutenant Gripentrog repeatedly called him “sweatheart [sic] homosexual” during rounds. Dubrovin attributed the comments to his being Russian and not speaking English well. He also stated that he had previously been sexually assaulted, but did not allege that Gripentrog knew about that history or made the comments because of it. He sought $75,000 in damages for pain and suffering.
Procedural history
Denis Dubrovin filed a complaint against Lieutenant Gripentrog and moved to proceed without prepaying the filing fee. After the court ordered an initial partial filing fee and previously extended the payment deadline, Dubrovin sought another five-month extension. The court denied the additional extension, waived the initial partial fee, screened the complaint under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, dismissed the complaint without leave to amend as futile, directed entry of judgment, and assessed a strike under § 1915(g).