Blue v. Ostrowski
2:21-cv-00946-JPS
E.D. Wis.Aug 15, 2023Background
- Plaintiff Randall Blue, a pro se prisoner at Oshkosh Correctional Institution, sued under 42 U.S.C. § 1983 alleging C.O. Cindy Ostrowski violated his constitutional rights (conditions of confinement, failure to protect, and retaliation/harassment).
- Court previously screened the original complaint and allowed two claims to proceed; Ostrowski moved for summary judgment on exhaustion grounds; Plaintiff later filed an amended complaint.
- Allegations in the amended complaint: Ostrowski ordered him to unplug unit fans in summer, issued multiple conduct reports (at least ten), harassed and intimidated him, caused stress and high blood pressure, allegedly conspired with a nurse to remove medical devices, and continued harassment after Plaintiff asked to be moved.
- The amended complaint omitted defendants and many facts from earlier pleadings; the Court noted that an amended complaint supersedes prior complaints and must be complete in itself.
- The Court found the amended complaint legally deficient for failure to state a claim, explained pleading standards, and gave Plaintiff one final opportunity to file a second amended complaint by September 5, 2023, warning that failure to do so would result in dismissal and a strike under 28 U.S.C. § 1915(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation | Blue alleges harassment and fear of retaliation after filing grievances/this suit | (Prior) Ostrowski argued exhaustion; factual details are lacking in amended complaint | Dismissed for failure to state a retaliation claim—amended complaint lacks facts showing protected activity or causal link |
| Eighth Amendment failure to protect | Blue claims Ostrowski placed him in danger (e.g., ordering fans unplugged) and failed to protect him from other inmates | No specific contrary factual assertions in screening; court requires allegations showing serious harm and defendant's deliberate indifference | Dismissed for failure to state an Eighth Amendment failure-to-protect claim—allegations are too vague and no injury shown |
| Eighth Amendment verbal harassment | Blue alleges repeated harassment and intimidation causing psychological/physical effects | Verbal harassment alone usually not actionable unless it raises substantial risk of harm from others | Dismissed for failure to state a verbal-harassment Eighth Amendment claim—allegations do not show harassment at the required severe level |
| Pleading/superseding effect of amended complaint | Blue attempted to rely on facts from prior complaints and add defendants (e.g., CPS Lawrence) | Court: amended complaint supersedes prior pleadings; must be complete and name all defendants | Court granted one final chance to replead with instructions (who/what/where/when); warned of dismissal and a strike if no timely second amended complaint |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility standard for pleadings)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility test for facially plausible claims)
- Farmer v. Brennan, 511 U.S. 825 (deliberate indifference standard for prison safety)
- Cesal v. Moats, 851 F.3d 714 (pro se pleading standards and screening under §1915A)
- Brooks v. Ross, 574 F.3d 574 (need to ground legal conclusions in plausible factual basis)
- Hawkins v. Mitchell, 756 F.3d 983 (elements of a First Amendment retaliation claim)
- Balsewicz v. Pawlyk, 963 F.3d 650 (Eighth Amendment deliberate indifference discussion)
- Beal v. Foster, 803 F.3d 356 (verbal harassment ordinarily not Eighth Amendment violation; exceptions where risk of harm increases)
- Duda v. Bd. of Educ., 133 F.3d 1054 (amended complaint supersedes prior pleadings)