Ebben, David Donald v. Correctional Officer Waggle

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
DAVID D. EBBEN,
Plaintiff, OPINION AND ORDER
v.
25-cv-343-wmc
CORRECTIONAL OFFICER WAGGLE,
Defendant.
Plaintiff David D. Ebben, who is representing himself, has filed a complaint under 42
U.S.C. § 1983, alleging that defendant Correctional Officer Waggle violated his rights while he
was incarcerated by the Wisconsin Department of Corrections (“DOC”). Because plaintiff
filed this case as a prisoner proceeding without prepayment of the filing fee, the court must
screen the complaint and dismiss any claim that is frivolous, malicious, fails to state a claim on
which relief may be granted, or seeks monetary damages from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A(b). When screening a complaint
drafted by a non-lawyer, the court applies a less stringent standard. Arnett v. Webster, 658 F.3d
742, 751 (7th Cir. 2011). However, plaintiff must still allege enough facts to show that he is
plausibly entitled to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Because the
pleadings are insufficient to state a claim, the court will dismiss the complaint without prejudice
and give plaintiff an opportunity to amend to correct the deficiencies described below.
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ALLEGATIONS OF FACT1
At all times relevant to the complaint, plaintiff David D. Ebbens was incarcerated by
DOC at the New Lisbon Correctional Institution (“NLCI”). Plaintiff alleges that on the
morning of January 12, 2024, he went to the “M.O.S.” for a zoom hearing in connection with
a “D.U.I. case.”2 Defendant Waggle asked plaintiff for his paperwork and plaintiff explained
that he could not find it as he had just moved rooms. Waggle informed plaintiff that he needed
the paperwork and directed plaintiff to return to his cell and look for it. Plaintiff, who was
concerned that he would miss his zoom hearing, told Waggle that he had already thoroughly
searched his cell and could not locate the paperwork. After placing a phone call, Waggle
escorted plaintiff to “the televisit station.”
After court concluded, plaintiff went back to his unit. At around noon, plaintiff went
back to the M.O.S. for his weekly Jummah service, which is a “traditional Muslim service that
is obligatory.” Plaintiff was met at the door by Waggle, who said to plaintiff, “You’re late
Allah.” After Waggle repeated the remark, plaintiff became upset and told Waggle that his
remark was “extremely disrespectful to him and his religion and there was absolutely no need
for it.” Without waiting for a response, plaintiff left the M.O.S. and skipped the Jummah
service.
Plaintiff reported Waggle’s insensitive, racist remarks to a sergeant, the unit manager,
and the security director, who encouraged plaintiff to pursue a grievance. However, the
1 The facts in this section are taken from plaintiff’s complaint. (Dkt. #1.) In addressing any pro
se litigant’s complaint, the court must read the allegations generously, drawing all reasonable
inferences and resolving ambiguities in plaintiff’s favor. Haines v. Kerner, 404 U.S. 519, 521 (1972).
2 Plaintiff does not explain what “M.O.S.” stands for, but the court infers that it is a multipurpose area
within the prison.
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Institution Complaint Examiner dismissed plaintiff’s grievance for procedural reasons, and the
warden subsequently dismissed his appeal. Disappointed by the lack of relief, plaintiff skipped
several other Jummah services.
OPINION
Plaintiff has filed this suit under 42 U.S.C. § 1983, alleging that the defendants violated
his rights. To state a claim for relief under § 1983, 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., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. Cnty. of Milwaukee, 570
F.3d 824, 827 (7th Cir. 2009)).
Plaintiff’s primary claim is that defendant Waggle disrespected him by calling him
“Allah,” which plaintiff interpreted as an offensive remark about his religious beliefs. However,
verbal harassment of this nature is insufficient grounds for relief under § 1983. See DeWalt v.
Carter, 224 F.3d 607, 612 (7th Cir. 2000) (“Standing alone, simple verbal harassment does
not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest
or deny a prisoner equal protection of the laws.”), abrogated on other grounds by Savory v. Cannon,
947 F.3d 409, 423 (7th Cir. 2020); but see Beal v. Foster, 803 F.3d 356, 357 (7th Cir. 2015)
(verbal sexual harassment accompanied by suggestive gestures, which arguably placed plaintiff
at greater danger of assault by other prisoners and allegedly caused inmate psychological
trauma to the extent of seeking mental health care, stated viable Eighth Amendment claim).
Plaintiff alleges further that Waggle’s actions violated the First Amendment by
interfering with the practice of his religious beliefs. The court will not allow plaintiff to proceed
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with this claim because, other than Waggle’s offensive remarks, plaintiff alleges no facts
showing that Waggle precluded him from attending Jummah services. Even construing all of
the inferences in plaintiff’s favor, plaintiff admits that he left the M.O.S. building voluntarily
after being upset by Waggle’s remarks and that he further chose not to attend other services
after being disappointed by the result of his grievance. Although plaintiff also invokes the
Fourteenth Amendment Equal Protection Clause, he similarly fails to allege facts showing that
he was prevented from attending Jummah services due to intentional discrimination. See Herro
v. City of Milwaukee, 44 F.3d 550, 552 (7th Cir. 1995) (“A person bringing an action under the
Equal Protection Clause must show intentional discrimination against him because of his
membership in a particular class, not merely that he was treated unfairly as an individual.”).
Plaintiff claims further that Waggle’s offensive remarks were made in retaliation for the
dispute that he had with plaintiff about his missing paperwork. To state a First Amendment
retaliation claim, plaintiff must allege that: (1) he engaged in activity protected by the First
Amendment; (2) he suffered a deprivation that would likely deter future First Amendment
activity; and (3) the protected activity was at least a motivating factor in defendants’ decision
to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Plaintiff
fails to state a claim because insubordinate verbal remarks to prison staff do not qualify as
protected activity. See, e.g., Kervin v. Barnes, 787 F.3d 833, 834 (7th Cir. 2015) (“backtalk by
prison inmates to guards, like other speech that violates prison discipline, is not constitutionally
protected”). Likewise, offensive remarks by a correctional officer are not a sufficient
deprivation to support a retaliation claim. See Hughes v. Scott, 816 F.3d 955, 956 (7th Cir.
2016) (“‘verbal harassment’ of a prisoner does not suffice [to deter a person of ordinary
firmness from engaging in future First Amendment activity], and . . . even threats may not
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suffice”). For these reasons, plaintiff fails to state a claim for retaliation.
Because plaintiff has failed to articulate a viable claim, the court will dismiss the
complaint without prejudice and give plaintiff a brief window of time to file an amended
complaint, if he wishes to do so. If he submits a proposed amended complaint by the deadline
set forth below, the court will screen it under 28 U.S.C. § 1915(e)(2).
ORDER
IT IS ORDERED that:
1. Plaintiff David D. Ebben is DENIED leave to proceed, and his complaint (dkt. #1)
is DISMISSED without prejudice for failure to state a claim upon which relief may
be granted, as set forth above.
2. Plaintiff has until January 9, 2026, to file an amended complaint that corrects the
above-referenced deficiencies. If plaintiff does not file an amended complaint before
that date, this case will be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)
for failure to state a claim.
3. Plaintiff’s motion for a status report (dkt. #15) is DENIED as moot.
Entered this 9th day of December, 2025.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge
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