United States District Court, E.D. Wisconsin
WILLIAM J. MENTING, Plaintiff,
WARDEN ROBERT HUMPHREYS, WILLIAM MCCREEDY, DR. WILLIAM KELLEY, SGT. SCHMIDT, CINDY O'DONNELL, and DR. HANNULA, Defendants.
Stadtmueller U.S. District Judge.
plaintiff, who is incarcerated at Stanley 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 in forma
pauperis. (Docket #5). The plaintiff has been assessed
and paid an initial partial filing fee of $33.33. 28 U.S.C.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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 in 2010, as the result of a traffic
accident, his leg was amputated. (Docket #1 at 4). Throughout
the relevant period, the stump was apparently painful and
bled regularly. Id. at 7-8. Though his allegations
are not clear, the plaintiff's primary complaint is that
prison officials failed to appropriately address this
handicap. As best the Court can discern, the plaintiff was
moved to Kettle Moraine Correctional Institution
(“KMCI”) in mid-2013 or early 2014. Id.
at 5-6. While at KMCI, the plaintiff was allegedly prohibited
from using a wheelchair but was instead required to use
crutches. Id. The plaintiff showed Sgt. Schmidt
(“Schmidt”) what he claims are orders from his
physician that he must use a wheelchair. Id. at 6.
Schmidt apparently ignored that document. Id.
Schmidt also seems to have refused to follow medical orders
to deliver the plaintiff's meals to him in his cell.
plaintiff further alleges that the other defendants ignored
his “calls for help, ” which appear to be prison
grievance filings and requests for medical service. (Docket
#1 at 7). Additionally, KMCI warden Robert Humphreys
(“Humphreys”) was allegedly “told
repeatedly about the actions of his subordinates[, ] [a]nd he
repeatedly refused to act[.]” Id. at 1. The
plaintiff accuses William McCreedy (“McCreedy”),
the Health Services Unit manager at KMCI, of acting in
concert with the other defendants to deny him a wheelchair.
Id. at 2. Dr. William Kelley (“Kelley”)
also received complaints from the plaintiff and did nothing.
Id. It is not clear whether Kelley is a state
employee, an independent contractor employed by the state, or
a private physician.
O'Donnell (“O'Donnell”), deputy secretary
of the Department of Corrections, ruled on at least one of
the plaintiff's grievance appeals. (Docket #1-9). The
plaintiff alleges that she failed to intervene to stop the
other defendants' constitutional violations and did not
adequately investigate his complaints. (Docket #1 at 2-3).
Finally, Dr. Hannula (“Hannula”), a physician at
the plaintiff's current institution, apparently denied
him orthopedic shoes. Id. at 3.
currently presented, the plaintiff's complaint states
only one viable claim for relief. His first cause of action
is asserted against all of the defendants for deliberate
indifference to his serious medical needs. Id. at
10. The Gayton case outlines the elements of the
[T]he plaintiff must show that: (1) [he] had an objectively
serious medical condition; (2) the defendants knew of the
condition and were deliberately indifferent to treating
[him]; and (3) this indifference caused [him] some injury. An
objectively serious medical condition is one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need
for a doctor's attention. A medical condition need not be
life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the
requisite culpable state of mind. This 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. Evidence that the official acted
negligently is insufficient to prove deliberate indifference.
Rather, “deliberate indifference” is simply a
synonym for intentional or reckless conduct, and that
“reckless” describes conduct so dangerous that
the deliberate nature of the defendant's actions can be
inferred. Simply put, an official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference. Even if a defendant recognizes the substantial
risk, he is free from liability if he responded reasonably to
the risk, even if the harm ultimately was not averted.