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Bowers v. Foster

United States District Court, E.D. Wisconsin

May 6, 2016

DAVID ELIJAH BOWERS, JR., Plaintiff,
v.
BRIAN FOSTER, TONY MELI, WILLIAM POLLARD, LT. LARSEN, SGT. BRADLEY, BELINDA SCHRUBBE, DR. MANLOVE, DR. TODD CALISTER, and KELLY MARWITZ, Defendants.

SCREENING ORDER

HON. RUDOLPH T. RANDA U.S. District Judge

The pro se plaintiff, a Wisconsin state prisoner, filed a complaint under 42 U.S.C. § 1983, alleging that the defendants violated his civil rights. He also seeks a “TRO injunction” due to “imminent danger.” (Dkt. No. 1 at 7.) This matter comes before the Court on the plaintiff’s petition to proceed in forma pauperis.

On March 21, 2016, the Court assessed an initial partial filling fee of $2.13. The plaintiff has filed a request to waive the initial partial filing due to his allegations of imminent danger. (Dkt. No. 7.) Under the circumstances, and upon further review of the plaintiff’s trust account statement, the Court will grant the plaintiff’s request and allow the case to proceed without payment of the initial partial filing fee. See 28 U.S.C. § 1915(b)(4).

The plaintiff has accumulated three “strikes, ” meaning that on three prior occasions, he had a case or appeal dismissed as frivolous, malicious, or for failure to state a claim.[1] See 28 U.S.C.§ 1915(g). However, the plaintiff alleges that he is under imminent danger of serious physical injury. Thus, the plaintiff falls under the imminent danger exception to the three-strikes rule and he may proceed in forma pauperis even though he has accumulated three strikes. See id.

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 “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).

In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

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 him 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)).

Complaint Allegations

The plaintiff is incarcerated at Waupun Correctional Institution. He alleges that on January 28, 2016, “staff” retaliated against him by placing him around dangerous inmates who have mental illnesses and behavioral problems. When he was working as a prison trustee, the plaintiff got into a confrontation with another inmate, named Trippelet, who is a known gang member. The plaintiff told defendant Bradley about the confrontation and he asked to be moved to another cell hall or to protective custody. The plaintiff’s requests were ignored. Later that day, inmate Trippelet brutally attacked the plaintiff and stabbed him in the hand with a prison shank. Defendant Bradley just stood there for five minutes and watched as the plaintiff was brutally attacked.

Eventually, Bradley called his supervisor, defendant Larson. When defendant Larson arrived he tasered the plaintiff, using excessive force. The plaintiff was taken to the medical officer, defendant Belinda Schrubbe, who simply put band-aids on the plaintiff’s stab wounds, effectively denying him medical treatment.

The plaintiff requested a “special placement need” from defendants Marwitz and Meli, to avoid being murdered by gang members, but his request was ignored. Defendants Meli, Marwitz, and Foster plan to place the plaintiff back around dangerous inmates who are trying to murder him, and the plaintiff requests a temporary restraining order to avoid that.

The plaintiff has bolts and staples in his right arm from a previous injury. On March 7, 2016, because of the attack from inmate Trippelet, the metal bolts and staples came loose and penetrated the outside of the plaintiff’s arm, causing excruciating pain. Defendants ...


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