United States District Court, E.D. Wisconsin
SHANE T. ROBBINS, Plaintiff,
JOHN SCHETTLE and ANN SCARPITA, Defendants.
ADELMAN United States District Judge
plaintiff, Shane T. Robbins, who is incarcerated at Waupun
Correctional Institution, is representing himself. He filed a
complaint alleging that the defendants violated his
constitutional rights. This matter comes before the court on
plaintiff's petition to proceed without prepayment of the
filing fee (in forma pauperis). He has been assessed
and paid an initial partial filing fee of $21.16.
See 28 U.S.C. § 1915(b)(1).
court shall 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. §
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)
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 mere
“labels and conclusions” or a “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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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.
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,
alleges that defendant Dr. Schettle removed his gum tissue
without numbing his mouth, causing him great pain. According
to plaintiff, when Dr. Schettle began to grind away at his
teeth without Novocain, his assistant saw plaintiff shaking
frantically in pain and asked Dr. Schettle, “what are
you doing? He hasn't been numbed.” (Docket # 1-1 at
1.) Dr. Schettle allegedly responded, “He'll be
fine, ” and continued grinding. (Id.)
Plaintiff alleges that he felt like he was being electrified.
also alleges that he tried to obtain statements regarding the
incident, but was unable to do so. His mail was sent to
defendant Health Service Manager Ann Scarpita. Plaintiff has
reviewed his medical records, but cannot find anything from
that dental visit.
claims that the “evil act of removing gum tissue
without numbing” violated his rights under the Eighth
Amendment. (Docket # 1 at 2.) For relief, he seeks
compensatory and punitive damages. Plaintiff also seeks
declaratory relief. He further seeks a preliminary and
permanent injunction ordering Dr. Schettle to lose his
license and to pay for plaintiff's upper and lower
implants by a professional outside of the prison.
court finds that the plaintiff may proceed on an Eighth
Amendment claim against Dr. Schettle. See McGowan v.
Hulick, 612 F.3d 636, 641 (7th Cir. 2010) (citing
Estelle v. Gamble, 429 U.S. 97, 104 n.10 (1976);
Johnson v. Doughty, 433 F.3d 1001, 1018-19 (7th Cir.
2006)). However, plaintiff may not proceed against defendant
Scarpita because she is not alleged to have been personally
involved in the incident. Burks v. Raemisch, 555
F.3d 592, 595-96 (7th Cir. 2009).
stated above, plaintiff seeks a preliminary injunction
ordering Dr. Schettle to lose his license and to pay for
dental implants for plaintiff. To obtain preliminary
injunctive relief, the plaintiff must show that (1) his
underlying case has some likelihood of success on the merits,
(2) no adequate remedy at law exists, and (3) he will suffer
irreparable harm without the injunction. Wood v.
Buss, 496 F.3d 620, 622 (7th Cir. 2007). If those three
factors are shown, the court must then balance the harm to
each party and to the public interest from granting or
denying the injunction. Id.; Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper
v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999).
plaintiff has not demonstrated a sufficient likelihood of
success on the merits at this early stage. Moreover,
plaintiff has not shown that he will suffer irreparable harm
without the injunction. Accordingly, ...