UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

BRUSHAE BROWN,

Plaintiff, v. Case No. 23-CV-1489-JPS

WARDEN RANDALL HEPP, EMILY PROPSON, and YANA PUSICH, ORDER

Defendants.

Plaintiff Brushae Brown, an inmate confined at Waupun Correctional Institution (“WCI”), filed a pro se complaint under

alleging that the defendants violated his constitutional rights. ECF No. 1. This Order resolves Plaintiff’s motion for leave to proceed without prepaying the filing fee and screens his complaint. 1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING THE FILING FEE The Prison Litigation Reform Act (“PLRA”) applies to this case because Plaintiff was a prisoner when he filed his complaint. See

(h). The PLRA allows the Court to give a prisoner plaintiff the ability to proceed with his case without prepaying the civil case filing fee.

§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing fee.

(b)(1). He must then pay the balance of the $350 filing fee over time, through deductions from his prisoner account.

On December 4, 2023, the Court ordered Plaintiff to pay an initial partial filing fee of $13.11. ECF No. 6. Plaintiff paid that fee on January 3, 2023. The Court will grant Plaintiff’s motion for leave to proceed without prepaying the filing fee. ECF No. 2. He must pay the remainder of the filing fee over time in the manner explained at the end of this Order. 2. SCREENING THE COMPLAINT 2.1 Federal Screening Standard Under the PLRA, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint if the prisoner raises 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). In determining whether the complaint states a claim, the Court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats,

(7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison,

(7th Cir. 2012)). A complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(2007)). “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.”

(citing Twombly,

). To state a claim for relief under

, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp.,

(7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,

(7th Cir. 2009)). The Court construes pro se complaints liberally and holds them to a less stringent standard than pleadings drafted by lawyers. Cesal,

(citing Perez v. Fenoglio,

(7th Cir. 2015)). 2.2 Plaintiff’s Allegations Plaintiff’s allegations involve the condition of his drinking water at WCI from January 2020 until the time his complaint was filed in 2023. ECF No. 1 at 2. Plaintiff was forced to drink water contaminated with high levels of radium, which is a harmful chemical that causes cancer. Plaintiff complained to Defendants Warden Randall Hepp (“Hepp”), Deputy Warden Emily Propson (“Propson”), and Security Director Y. Pusich (“Pusich”) about the contaminated water numerous times, but all his complaints went ignored and Defendants did nothing to fix the contamination problem.

The Wisconsin DNR has acknowledged that long-term exposure to radium in drinking water may result in an increased risk of bone cancer.

Plaintiff wrote to health services multiple times complaining of headaches, dizziness, severe stomach cramps, and vomiting due to drinking contaminated water, but his requests went ignored and he was denied medical treatment. Id. 2.3 Analysis The Court finds that Plaintiff states a claim against Hepp, Propson, and Pusich for an Eighth Amendment conditions of confinement claim. A prisoner’s claim of unconstitutional conditions of confinement is analyzed under the Eighth Amendment’s cruel and unusual punishment clause. See Farmer v. Brennan,

, 834 (1994). A prisoner is entitled to live in conditions that do not amount to “punishment.” Bell v. Wolfish,

(1979). Detainees are entitled to be confined under humane conditions that provide for their “basic human needs.” Rhodes v. Chapman,

(1981). “The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones[.]” Snipes v. DeTella,

(7th Cir. 1996). To establish a constitutional violation with respect to an inmate’s living conditions, he must be able to demonstrate both: (1) the conditions were objectively so adverse that they deprived him “of the minimal civilized measure of life's necessities,” and (2) the defendants acted with deliberate indifference with respect to the conditions. Townsend v. Fuchs,

(7th Cir. 2008) (quoting Farmer, 511 U.S. at 834). “Life’s necessities include shelter, heat, clothing, sanitation, and hygiene items.” Woods v. Schmeltz, No. 14-CV-1336,

, at *1 (C.D. Ill. Dec. 11, 2014) (citing Gillis v. Litscher,

(7th Cir. 2006)); see also Budd v. Motley,

, 842–43 (7th Cir. 2013). Depriving a prisoner of drinkable and safe water constitutes an Eighth Amendment conditions of confinement claim. Smith v. Dart,

(7th Cir. 2015). Here, at the early pleading stage, Plaintiff has sufficiently stated an Eighth Amendment conditions of confinement claim against Hepp, Propson, and Pusich as it relates to his drinking water. Plaintiff alleges that the drinking water at WCI is so contaminated with radium that it caused him serious health issues and increases his risk for bone cancer. Plaintiff notified all three defendants of the continuing drinking water contamination, and none took action to alleviate the problem. In order to succeed on his claim Plaintiff will need to produce evidence to support his allegations, which may prove to be a difficult task; however, at the pleading stage Plaintiff’s allegations are sufficient to proceed. See

(reversing district court screening order and finding that a prisoner could proceed on a contaminated drinking water claim for alleging high levels of alpha + beta radiation, cyanide, and lead). The Court does not find that Plaintiff states an Eighth Amendment claim against any named defendants for the denial of medical treatment. Plaintiff does not include any allegations that he informed the named defendants of his health care requests or need for medical treatment. If Plaintiff wishes to proceed on a claim for the denial of medical care, Plaintiff must file an amended complaint with more details regarding who denied him medical treatment and the circumstances surrounding the denials. In the meantime, Plaintiff may proceed against Hepp, Propson, and Pusich for an Eighth Amendment conditions of confinement claim for their deliberate indifference to the unsafe drinking water at WCI. 3. CONCLUSION In light of the foregoing, the Court finds that Plaintiff may proceed on the following claim pursuant to 28 U.S.C. § 1915A(b): Claim One: Eighth Amendment conditions of confinement claim against Hepp, Propson, and Pusich. The Court has enclosed with this Order guides prepared by court staff to address common questions that arise in cases filed by prisoners. These guides are entitled, “Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro Se Litigants’ Common Questions.” They contain information that Plaintiff may find useful in prosecuting his case. Defendants should take note that, within forty-five (45) days of service of this Order, they are to file a summary judgment motion that raises all exhaustion-related challenges. The Court will issue a scheduling order at a later date that embodies other relevant deadlines. Accordingly, IT IS ORDERED that Plaintiff’s motion for leave to proceed without prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED; IT IS FURTHER ORDERED that under an informal service agreement between the Wisconsin Department of Justice and this Court, a copy of the complaint and this Order have been electronically transmitted to the Wisconsin Department of Justice for service on Defendants Hepp, Propson, and Pusich; IT IS FURTHER ORDERED that under the informal service agreement, those Defendants shall file a responsive pleading to the complaint within sixty (60) days; IT IS FURTHER ORDERED that Defendants raise any exhaustion- related challenges by filing a motion for summary judgment within forty- five (45) days of service; IT IS FURTHER ORDERED if Defendants contemplate a motion to dismiss, the parties must meet and confer before the motion is filed. Defendants should take care to explain the reasons why they intend to move to dismiss the complaint, and Plaintiff should strongly consider filing an amended complaint. The Court expects this exercise in efficiency will obviate the need to file most motions to dismiss. Indeed, when the Court grants a motion to dismiss, it typically grants leave to amend unless it is “certain from the face of the complaint that any amendment would be futile or otherwise unwarranted.” Harris v. Meisner, No. 20-2650,

, at *2 (7th Cir. Nov. 29, 2021) (quoting Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind.,

(7th Cir. 2015)). Therefore, it is in both parties’ interest to discuss the matter prior to motion submissions. Briefs in support of, or opposition to, motions to dismiss should cite no more than ten (10) cases per claim. No string citations will be accepted. If Defendants file a motion to dismiss, Plaintiff is hereby warned that he must file a response, in accordance with Civil Local Rule 7 (E.D. Wis.), or he may be deemed to have waived any argument against dismissal and face dismissal of this matter with prejudice. IT IS FURTHER ORDERED that the agency having custody of Plaintiff shall collect from his institution trust account the $336.89 balance of the filing fee by collecting monthly payments from Plaintiff’s prison trust account in an amount equal to 20% of the preceding month’s income credited to Plaintiff’s trust account and forwarding payments to the Clerk of Court each time the amount in the account exceeds $10 in accordance with

(b)(2). The payments shall be clearly identified by the case name and number assigned to this case. If Plaintiff is transferred to another county, state, or federal institution, the transferring institution shall forward a copy of this Order along with his remaining balance to the receiving institution; IT IS FURTHER ORDERED that a copy of this Order be sent to the officer in charge of the agency where Plaintiff is confined; and IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a copy of the guides entitled “Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro Se Litigants’ Common Questions,” along with this Order. Dated at Milwaukee, Wisconsin, this 10th day of January, 2024. BY THE¢eCOURT: \\ Se Re PEN Ph Eee J.B. Stes eller U.S: District Judge Page 7 of 8

Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the Court. Prisoner E-Filing is mandatory for all inmates at Columbia Correctional Institution, Dodge Correctional Institution, Green Bay Correctional Institution, Oshkosh Correctional Institution, Waupun Correctional Institution, and Wisconsin Secure Program Facility. Plaintiffs who are inmates at all other prison facilities, or who have been released from custody, will be required to submit all correspondence and legal material to: Office of the Clerk United States District Court Eastern District of Wisconsin 362 United States Courthouse 517 E. Wisconsin Avenue Milwaukee, Wisconsin 53202 DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. If mail is received directly to the Court’s chambers, IT WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN THE CASE. Plaintiff is further advised that failure to timely file any brief, motion, response, or reply may result in the dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of Court of any change of address. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS ACTION WITHOUT PREJUDICE.