United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Terrance Prude, who is incarcerated at the Waupun
Correctional Institution, filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. This matter comes before the court for
screening Prude's complaint and on his petition to
proceed in forma pauperis.
plaintiff is required to pay the $350.00 statutory filing fee
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
can request leave to proceed in forma pauperis.
Prude 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), and has been assessed and paid an initial partial
filing fee of $11.07. Prude's motion to proceed in
forma pauperis will be granted.
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 Atl. 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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citations omitted).
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. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Vill. of N. 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)).
alleges Nurse Howell violated his Eighth Amendment rights by
being deliberately indifferent to his asthma attacks. He
claims he suffered two asthma attacks but was denied an
inhaler. The Eighth Amendment, which prohibits “cruel
and unusual punishments, ” imposes a duty on prison
officials to take reasonable measures to guarantee an
inmate's safety. Farmer v. Brennan, 511 U.S.
825, 832 (1994); see U.S. Const. Amend. VIII. A
prison official's “deliberate indifference”
to a prisoner's medical needs or to a substantial risk of
serious harm to an inmate violates the Eighth Amendment.
See Farmer, 511 U.S. at 828.
test for such a violation has two parts. Id. at 834.
First, the deprivation alleged must be “sufficiently
serious” when viewed objectively. Id. To be
liable, a prison official must deny the “minimal
civilized measure of life's necessities” or create
“a substantial risk of serious harm.”
Id. Second, the official must have acted out of
“deliberate indifference” to the inmate's
health or safety. Id. Deliberate indifference
requires more than negligence; it requires that the official
know of, yet disregard, an excessive risk to the inmate's
health or safety. Id. at 835, 837. Subjective
knowledge of the risk is required: “[A]n official's
failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of
punishment.” Id. at 838.
Prude's allegations, if true, could rise to a level
constituting deliberate indifference. An inability to
breathe, due to asthma, could create a substantial risk of
serious harm and is sufficiently serious when viewed
objectively. Prude's allegations that Nurse Howell
willfully ignored his pleas also suggests a possibility that
she acted with deliberate indifference to the risks of his
heath and safety. Therefore, Prude will be allowed to proceed
on his deliberate indifference claim against Nurse Howell.
THEREFORE ORDERED that the plaintiff's motion for leave
to proceed in forma pauperis (ECF No. 2) is GRANTED.
FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and
this court, copies of the plaintiff's complaint and this
order are being ...