United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
plaintiff, who is incarcerated at Green Bay Correctional
Institution (GBCI), filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated. This matter comes before the court on the
plaintiff's petition to proceed in forma
plaintiff is required to pay the statutory filing fee of
$350.00 for this action. See 28 U.S.C. §
1915(b)(1). If a prisoner does not have the money to pay the
filing fee, he or she can request leave to proceed in
forma pauperis. The plaintiff has filed a certified copy
of his prison trust account statement for the six-month
period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2). The plaintiff has
been assessed and paid an initial partial filing fee of $5.89
in this action.
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); 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 “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
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 his 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)).
claims that on September 8, 2015, Defendant Wesley Forbes, a
psychologist at Green Bay Correctional Institution, stabbed
his thumb with a pen while his arm was hanging out of the
cell's food port. Thompson allegedly notified prison
staff earlier that day that he felt suicidal, wanted to speak
with a psychologist, and would keep his arms outside of the
food port to prevent the door from being closed until Dr.
Hamilton arrived. Thompson explicitly refused to see Dr.
Forbes, claiming Dr. Forbes made him uncomfortable. Upon
arrival, Dr. Forbes allegedly threatened Thompson with
violence and mocked his claims of mental health problems. Dr.
Forbes then allegedly made jabbing motions, used a racial
epithet, accused him of faking, and and eventually stabbed
Thompson's thumb with his pen, causing it to bleed.
Thompson claims that the injury was an 8 on a 10-point pain
scale. He further alleges photographs were taken of the
injury and that he received medical treatment.
general test for the Eighth Amendment bars “unnecessary
and wanton infliction of pain, ” particularly when
“totally without penological justification.”
Hope v. Pelzer, 536 U.S. 730, 737 (2001). The
inquiry in claims involving allegations of excessive force by
prison officials against an inmate is whether the prison
official inflicted an injury “maliciously and
sadistically for the very purpose of causing harm.”
See Hudson v. McMillian, 503 U.S. 1, 6 (1992);
Whitley v. Albers, 475 U.S. 312 (1986). Thus, the
infliction of even a relatively minor or de minimis
injury can constitute a violation of the Eighth
Amendment's prohibition of ‘cruel and unusual'
punishment if it is done maliciously. Hudson, 503
U.S. at 9 (“When prison officials maliciously and
sadistically use force to cause harm, contemporary standards
of decency always are violated. . . . . This is true whether
or not significant injury is evident.”). Given this
subjective state-of-mind standard, it is difficult to rule
out Eighth Amendment claims at the screening stage, and so
Thompson's claim must be allowed to proceed. Accordingly,
Thompson may proceed in his Eighth Amendment claim against
Dr. Forbes in his individual capacity. Thompson also seeks to
sue Dr. Forbes in his official capacity, but “[a] suit
against a state official in his or her official capacity is a
suit against the state, and so is barred by the Eleventh
Amendment unless (so far as pertains to this case) the state
has waived its Eleventh Amendment immunity from suit in
federal court.” Power v. Summers, 226 F.3d
815, 818 (7th Cir. 2000).
THEREFORE ORDERED that the plaintiff's motion for leave
to proceed in forma pauperis be and hereby is
GRANTED and Thompson can proceed on his claim against Dr.
Forbes in his individual capacity.
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 are being electronically sent today to the Wisconsin
Department of Justice for service on the state defendant.
ALSO ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court,
the defendant shall file a responsive pleading to the
complaint within sixty days of receiving electronic notice of
FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from
the plaintiff's prison trust account the $344.11 balance
of the filing fee by collecting monthly payments from the
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 the court each time the amount in the account
exceeds $10 in ...