United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
plaintiff, who is incarcerated at the Wisconsin Secure
Program Facility, 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 in forma
pauperis. (Docket #2). The plaintiff has been assessed
and paid an initial partial filing fee of $4.82. 28 U.S.C.
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. §
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.
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 complaint 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.
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, 106 (1976)).
plaintiff alleges that on July 28, 2015, he was incarcerated
in the Milwaukee County Jail. (Docket #1 at 2). The defendant
Lt. Solpeck (“Solpeck”) observed the plaintiff
using a fishing line to pass a message to another inmate
while both were locked in their cells. Id. Solpeck
asked the plaintiff to give him the line but he refused.
Id. Solpeck returned a few minutes later with the
five John Doe defendants (the “Officers”).
Id. They opened the trap door to the plaintiff's
cell and ordered him to put his hands out of the door.
Id. When he did so, some of the Officers grabbed his
arms, while another sprayed him with mace in the face, chest,
and stomach. Id. The plaintiff states that he was
coughing, yelling “I can't breathe, ” and he
could not see. Id.
Officers then entered the plaintiff's cell. Id.
They began punching and kicking him repeatedly. Id.
The Officers searched for the line but could not find it.
Id. Eventually, the plaintiff found the line and
gave it to Solpeck. Id. at 3. A few minutes later,
the Officers came back to take the plaintiff to see a nurse.
Id. The nurse, the Jane Doe defendant, flushed the
plaintiff's eyes, checked his heartbeat, and gave him a
few minutes to compose himself. Id. She then cleared
the plaintiff to return to his cell. Id.
plaintiff asked one of the Officers if he could take a shower
to remove the mace residue but he was refused. Id.
The plaintiff attended a court hearing the next morning with
mace still on his body. Id. He requested a complaint
form from the Officers and Solpeck but they refused to
provide one. Id.
plaintiff alleges three constitutional violations. The first
is against Solpeck and the Officers for cruel and unusual
punishment. Id. The second is against Jane Doe for
denying him adequate medical treatment. Id. The
third is against the defendant David Clark (correctly spelled
“Clarke”), the Milwaukee County Sheriff, for
“failure to train as well as turn a blind eye.”
Id. at 4. The plaintiff seeks money damages.
one of the three proposed claims is viable. The plaintiff may
proceed on an excessive force claim against Solpeck and the
Officers. The Eighth Amendment prohibits the
“unnecessary and wanton infliction of pain” on
prisoners. Outlaw v. Newkirk, 259 F.3d 833, 837 (7th
Cir. 2001). When a correctional officer is accused of using
excessive force, the core inquiry is “whether force was
applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause
harm.” Hudson v. McMillian, 503 U.S. 1, 7
(1992); Santiago v. Walls, 599 F.3d 749, 757 (7th
Cir. 2010). Several factors are relevant to this
determination, including the need for force, the amount
applied, the threat the officer reasonably perceived, the
effort made to temper the severity of the force used, and the
extent of the injury caused to the prisoner. Hudson,
503 U.S. at 7; Fillmore v. Page, 358 F.3d 496, 504
(7th Cir. 2004). Taking the plaintiff's allegations as
true, there appears to have been little need for force, and
certainly no need to continually strike the plaintiff after
entering his cell.
plaintiff fails, however, to state a claim against Jane Doe.
He asserts an Eighth Amendment claim for inadequate medical
care, which is assessed under the “deliberate
indifference” standard. To state a claim of deliberate
indifference to serious medical need, the plaintiff must
show: (1) an objectively serious medical condition; (2) that
the defendants knew of the condition and were deliberately
indifferent in treating it; and (3) this indifference caused
the plaintiff some injury. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010). The deliberate indifference inquiry
has two components. “The official must have subjective
knowledge of the risk to the inmate's health, and the
official also must disregard that risk.” Id.
Even if an official is aware of the risk to the inmate's
health, “he is free from liability if he
‘responded reasonably to the risk, even if the harm
ultimately was not averted.'” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 843 (1994)).
Negligence cannot support a claim of deliberate indifference;
nor is medical malpractice a constitutional violation.
Estelle, 429 U.S. at 105-06; Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011). Based on the
plaintiff's allegations, Jane Doe took immediate steps to
treat his pain when the Officers presented him to her. The
plaintiff does not state what she allegedly failed to do to
treat his symptoms. Even if he had done so, it does not
appear that her conduct would approach medical malpractice,
much less exceed it to the extent necessary to support a
deliberate indifference claim.
plaintiff's claim against Clarke also fails. A
“failure to train” claim is one pursuant to the
U.S. Supreme Court's Monell doctrine. Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).
To state such a claim, the plaintiff must allege that
“the unconstitutional act complained of [was] caused
by: (1) an official policy adopted and promulgated by its
officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well
settled; or (3) an official with final policy-making
authority.” Thomas v. Cook County Sheriff's
Dept., 604 F.3d 293, 303 (7th Cir. 2009) (citing
Monell, 436 U.S. at 690). The plaintiff has failed
to allege facts supporting any of these theories. Further, to