Johnson v. Bono et al, No. 1:2017cv00015 - Document 8 (E.D. Wis. 2017)
Court Description: ORDER granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Defendant Wisconsin Department of Corrections is dismissed. (cc: all counsel and via US Mail to Steven Johnson, Warden, and AAG Finkelmeyer) (Griesbach, William)
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Johnson v. Bono et al Doc. 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN STEVEN M. JOHNSON, Plaintiff, v. Case No. 17-C-15 DR. O. BONO, DR. CHESTER, CORRECTIONAL OFFICER WEARY, and WISCONSIN DEPARTMENT OF CORRECTIONS, Defendants. SCREENING ORDER The plaintiff, who is incarcerated at Fox Lake Correctional Institution (FLCI), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on the plaintiff's petition to proceed in forma pauperis. The plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he or she can request leave to proceed in forma pauperis. The plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2). The plaintiff has been assessed an initial partial filing fee of $6.64 in this action, but indicates he is unable to pay that fee. It appears the prisoner will be unable to pay the initial partial filing fee, and so that fee is waived. 28 U.S.C. § 1915(b)(4). The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally Dockets.Justia.com "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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,” although sometimes treated as a synonym for “frivolous,” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that he is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). 2 To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon his by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se allegations, “however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Johnson claims Defendants exhibited deliberate indifference to his serious medical needs, which resulted in personal injury and a denial of immediate medical treatment. At all times relevant, Johnson was incarcerated at the Milwaukee Secured Detention Facility. He contends that his medical records included an instruction that he should be housed in a low bunk on a low tier because he was being treated with Warfarin. Johnson alleges that Dr. Bono failed to recommend the low bunk/low tier restriction, and as a result, Johnson slipped and fell on the upper tier on December 28, 2015 and January 11, 2016. He further alleges that Dr. Bono failed to treat a serious shoulder injury that arose from the December fall and that Dr. Chester failed to treat the left Achilles tendon and right knee injuries that arose from the January fall. Johnson also claims that Corrections Officer Weary was aware of Johnson’s injuries and failed to file an incident report which allegedly resulted in a four-day delay in receiving treatment. Finally, Johnson alleges Dr. Chester failed to provide treatment for six months for his shoulder, Achilles, and knee injuries. It is well-established that deliberate indifference to the serious medical needs of a person held in custody violates his or her constitutional rights. Estelle v. Gamble, 429 U.S. 97, 104 (1976); 3 Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). To establish liability, a prisoner must show (1) that his medical need was objectively serious; and (2) that the official acted with deliberate indifference to the prisoner’s health or safety. Farmer, 511 U.S. at 834. A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). Deliberate indifference requires more than negligence; it requires that the official know of, yet disregard, an excessive risk to the inmate's health or safety. Farmer, 511 U.S. at 835, 837. Subjective knowledge of the risk is required: "[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment." Id. at 838. At this stage, Johnson has stated an Eighth Amendment claim. Based on the facts stated above, this court cannot say that Johnson’s medical conditions do not constitute a serious medical need or that prison officials did not demonstrate deliberate indifference to his condition. To recover under § 1983 a plaintiff must establish that a defendant was personally responsible for the deprivation of a constitutional right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). An official satisfies the personal responsibility requirement of § 1983 if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent. Id. At this stage of the litigation, Johnson may proceed against Dr. Bono and Dr. Chester. Johnson may also proceed against Officer Weary based upon Johnson’s allegation that Weary knew of Johnson’s injury yet did nothing at the time. He may not proceed against the Wisconsin Department of Corrections, because it is not a “person” who can be sued under § 1983. Thomas v. Illinois, 697 F.3d 612, 613 (7th Cir. 2012). 4 ORDER IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma pauperis be and hereby is GRANTED. IT IS FURTHER ORDERED that defendant Wisconsin Department of Corrections is DISMISSED. IT IS FURTHER ORDERED that pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, copies of plaintiff’s complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the state defendants. IT IS ALSO ORDERED that, pursuant to the informal service agreement between the Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of Corrections or his designee shall collect from the plaintiff's prison trust account the $350.00 balance of the filing fee by collecting monthly payments from the plaintiff's prison trust account in an amount equal to 20% of the preceding month's income credited to the prisoner's trust account and forwarding payments to the clerk of the court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the case name and number assigned to this action. IT IS ALSO ORDERED that copies of this order be sent to the warden of the institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857. 5 IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal material to: Honorable William C. Griesbach c/o Office of the Clerk United States District Court - WIED United States Courthouse 125 S. Jefferson St., Suite 102 Green Bay, Wisconsin 54301 PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will only delay the processing of the matter. The plaintiff is further advised that failure to make a timely submission 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. Failure to do so could result in orders or other information not being timely delivered, thus affecting the legal rights of the parties. Dated this 3rd day of February, 2017. s/ William C. Griesbach William C. Griesbach, Chief Judge United States District Court 6
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