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Zanotti v. Zimkiewicz

United States District Court, E.D. Wisconsin

July 19, 2016



          HON. PAMELA PEPPER United States District Judge

         The plaintiff, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights while he was housed at the Wisconsin Resource Center. Dkt. No. 1. He also has filed a motion for leave to proceed without prepayment of the filing fee (Dkt. No. 2). The court will grant the motion to proceed without prepaying the filing fee, and will screen the complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act applies to this action because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the civil case filing fee, as long as he meets certain conditions. On June 27, 2016, the plaintiff filed a motion for leave to proceed without prepayment of the filing fee (Dkt. No. 2). On June 28, 2016, Magistrate Judge William Duffin (the presiding judge at that time) ordered the plaintiff to pay an initial partial filing fee of $14.93. Dkt. No. 5. The plaintiff paid the initial partial filing fee on July 18, 2016. Because the plaintiff has paid the initial partial filing fee, the court will grant his motion, and will allow the plaintiff to pay the remainder of the fee over time as explained at the end of this decision.

         II. Screening the Plaintiff's Complaint

         A. Standard for Screening Complaints

         The law requires the court 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 part or all of a complaint if the plaintiff 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).

         To state a claim under the federal notice pleading system, the plaintiff must provide a "short and plain statement of the claim showing that [he] is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2). A plaintiff does not need 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 Atl. 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 follow the principles set forth in Twombly. First, they must "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id. Second, if there are well-pleaded factual allegations, courts must "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 the defendants: 1) deprived of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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 a pro se plaintiff's allegations, "however inartfully pleaded, " a liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         B. Facts Alleged in the Complaint

         The plaintiff alleges that in November 2015, he refused to take the medication Geodon. Dkt. No. 1 at 2. Geodon (generic name ziprasidone) is an antipsychotic medication that is used to treat schizophrenia and the manic symptoms of bipolar disorder. See (last visited July 19, 2016). The plaintiff states that Dr. Michelle Andrade ordered an injection of Geodon to be forcefully administered in the event he refused to voluntarily take the medication. Dkt. No. 1 at 2-3.

         The plaintiff states that RN Charissa Doolittle claimed that she had a court order giving her the right to extract the plaintiff from his cell and forcefully administer the drug. Id. at 3. The plaintiff explains that at the time of his refusal, a judge recently had ordered only that he take his medication, but had "purposefully withheld" an order requiring the medication to be involuntarily administered should he refuse. Id. at 2, 4. The plaintiff states that the staff at the Wisconsin Resource Center knew the contents of the court order. Id. at 4. When the plaintiff demanded to see the court order, Doolittle presented a "crumpled up piece of scrap paper from the trash." Id. at 3. The plaintiff states that PCS Rich Zimkiewicz observed this incident unfold and "vowed to have [the plaintiff] forcefully medicated if [he] did not submit" even though he knew no court order existed. Id. at 3, 4.

         The plaintiff states that he wrote a Health Service Request, documenting that he was taking the Geodon under protest to avoid the physical harm that might occur during a cell extraction. Id. at 3. The plaintiff states that ...

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