United States District Court, E.D. Wisconsin
TOMMIE L. CARTER, Plaintiff,
TORRIA VANBUREN and DEREK SCHOUTEN, Defendants.
Stadtmueller U.S. District Judge.
filed a pro se complaint under 42 U.S.C. § 1983
alleging that his civil rights were violated while he was
incarcerated at Waupun Correctional Institution
(“Waupun”). (Docket #1). This matter comes before
the Court on Plaintiff's motions to proceed in forma
pauperis. (Docket #2 and #6). The Court has waived
Plaintiff's initial partial filing fee because of his
inability to pay such a fee. (Docket #9).
the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915A, 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).
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 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 “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, 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,
alleges that on November 4, 2015, he informed Defendants that
he was suicidal and that he “was going to engage in
self-harm on the third shift.” (Docket #1 at 1).
Defendant Van Buren is a psychologist at Waupun, while
Defendant Schouten is a correctional officer. Id.
Although he does not say what their response was, the Court
is left to assume that Defendants ignored Plaintiff's
statement. See Id. That night, Plaintiff attempted
suicide by cutting his arms and legs, and by overdosing on
acetaminophen pills. Id. at 2. Correctional officers
found him in his cell, unconscious and bleeding. Id.
He was taken to the hospital and treated. Id.
Plaintiff asserts that Defendants violated the Eighth
Amendment when they failed to prevent him from attempting
suicide. Id. at 3. He further claims that their
failure to respond to his suicide threats is one instance
among a pattern of such conduct by officials at the prison.
Id. Plaintiff seeks monetary and injunctive relief.
Id. at 3-4.
may proceed on an Eighth Amendment claim for Defendants'
deliberate indifference to his serious medical needs-in
particular, their allegedly inadequate response to his
repeated suicidal statements. To state a claim of deliberate
indifference to a 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
here, like that applicable to conditions of confinement, 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, 511 U.S. at 843). Negligence cannot support
a claim of deliberate indifference, nor is medical
malpractice a constitutional violation. Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976); Roe v.
Elyea, 631 F.3d 843, 857 (7th Cir. 2011). Construing
Plaintiff's allegations liberally, the Court finds that
Plaintiff should be permitted to proceed on this claim.
See Estate of Novack ex rel. Turbin v. Cnty. of
Wood, 226 F.3d 525, 529 (7th Cir. 2000) (“In order
to be liable under the Eighth Amendment, a prison official
must be cognizant of the significant likelihood that an
inmate may imminently seek to take his own life and must fail
to take reasonable steps to prevent the inmate from
performing this act.”). It may be that Defendants
responded adequately to Plaintiff's threat of suicide,
but, given the low bar applied at the screening stage, the
Court finds it appropriate to let this claim proceed.
reasons stated above, the Court finds that Plaintiff may
proceed on the following claim: an Eighth Amendment claim of
deliberate indifference to his serious medical need arising
from Plaintiff's threat of suicide and suicide attempt on
November 4, 2015.
IT IS ORDERED that Plaintiff's motions
for leave to proceed in forma pauperis (Docket #2
and #6) be and the same is hereby GRANTED;
IS FURTHER ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this Court, copies of Plaintiff's complaint and this
order will be electronically sent to the Wisconsin Department
of Justice for service on Defendants;
IS FURTHER ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice
and this Court, Defendants shall file a responsive pleading
to the complaint within sixty (60) days of receiving
electronic notice of this order;
IS FURTHER ORDERED that the Secretary of the
Wisconsin Department of Corrections or his designee shall
collect from Plaintiff's prison trust account the balance
of the filing fee by collecting monthly payments from
Plaintiff's prison trust account in an amount equal to
20% of the preceding month's income credited to the
prisoner's trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds
$10 in ...