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Poff v. Wisconsin Resource Center

United States District Court, E.D. Wisconsin

December 1, 2016

JEFF POFF, Plaintiff,


          J.P. Stadtmueller U.S. District Judge

         The plaintiff, who is incarcerated at Columbia Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. (Docket #1). This matter comes before the Court on the plaintiff's motion to proceed without prepayment of the filing fee. (Docket #2). The plaintiff has been assessed and paid an initial partial filing fee of $4.61. 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. Id. § 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. Id. § 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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).

         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)); see Christopher v. Buss, 384 F.3d 879, 881 (7th Cir. 2004). 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 allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted); Christopher, 384 F.3d at 881.

         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 “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, the 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. Cnty. 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)).

         The plaintiff alleges the following in his complaint: in mid-March 2012, the plaintiff was transferred from Waupun Correctional Institution (“WCI”) to the Wisconsin Resource Center (“WRC”) to receive mental health treatment and specifically to attend post-traumatic stress disorder (“PTSD”) therapy. On April 12, 2012, around 4:00 p.m., a guard approached the plaintiff and told him to pack his belongings to move to the segregation unit. The guard told the plaintiff the transfer was due to an incident that took place on the “A-side.” The plaintiff obeyed the command without incident.

         On April 16, 2012, Defendant Fry took the plaintiff out of his cell in Unit II to interrogate him about an alleged fight in which the plaintiff had participated. The plaintiff stated he knew nothing about the allegations and declined to answer any further questions. Defendant Fry then returned the plaintiff to his cell. Following this incident, a “treatment team” consisting of Defendants Fry, Hitz, Hiese, Bunk, Jane Doe Unit 9 Psychologist, and possibly two other people, met and decided to transfer the plaintiff back to WCI and deny him mental health treatment. The plaintiff maintains that the defendants made this decision without conducting a program review committee hearing, a violation of his due process and state law rights.

         Shortly after returning to his cell, Defendant Jane Doe Unit 9 Psychologist called the plaintiff to his cell door. She told the plaintiff, without explanation, that he was no longer able to receive PTSD therapy at WRC. The plaintiff alleges that this action violated his right to be informed about his medical treatment.

         On April 17, 2012, while attending Unit 11 “Day Room Recreation, ” the plaintiff asked to use the telephone to call his family. Defendant PCS Lori denied his request. He asked a second time and to speak to a supervisor, but PCS Lori replied, “No! Now leave me alone.” The plaintiff asked again, and in response PCS Lori made a “trouble call” and eight to ten security staff members. identified in the complaint as Defendants John Does 1-8, ran onto Unit 11. Without any warning, the security staff members tackled the plaintiff to the floor where he was kicked and punched several times.

         After this attack, security staff threatened the plaintiff with a stun gun if he refused to walk to an observation cell. Although the plaintiff was injured, he forced himself to comply and limped to the observation cell. Defendant PCS Scott and other unknown staff members escorted the plaintiff with PCS Lori to the observation cell. During this walk, the plaintiff commented that his left hand was bleeding and he required medical assistance. Defendants denied him any medical treatment at this time. Further, once inside the observation cell the plaintiff saw Defendant Nurse Kathy delivering medication to other prisoners. The plaintiff screamed for help from Nurse Kathy to treat his injuries, but she refused to talk to him or provide any treatment.

         Shortly after this incident, PCS Lori called the plaintiff to his cell door and told him the reason he could not use the phone was that he was being transferred to WCI in the morning. The plaintiff then asked PCS Lori if she knew that he had a history of trying to hang himself; PCS Lori replied, “yes, ” and asked the plaintiff if he was feeling suicidal at that time. The plaintiff stated that he was feeling suicidal, and PCS Lori placed him on “observation status.” PCS Lori allowed the plaintiff to keep all of his clothing and a mattress in the room with him during this time.

         At about midnight on April 18, 2016, the plaintiff began feeling extremely hopeless and prepared to kill himself; he cut up his t-shirt, made a noose from it, and tied it to an opening in the light fixture. The plaintiff then placed his head into the noose and attempted to hang himself. A guard on the third ...

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