United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who is incarcerated at the Wisconsin Secure Program Facility
(“WSPF”), 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
Plaintiff's motion to proceed in forma pauperis.
(Docket #6). Plaintiff has been assessed and paid an
initial partial filing fee of $18.36. 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. 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 Atl. 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)).
he is currently housed at WSPF, Plaintiff's allegations
relate to events which occurred at his previous institution,
Green Bay Correctional Institution (“GBCI”). At
some point (Plaintiff does not provide a date), Plaintiff was
told that he would be transferred to WSPF. (Docket #1-2 at
1). Plaintiff spoke with a Defendant John Doe social worker
that the move would lead him to attempt suicide, citing the
increased distance from family support. Id. Later
that day, Plaintiff wrote to “PSU, ” which the
Court assumes stands for “Psychological Services Unit,
” asking to speak with someone about that concern.
Id. The Defendant John Doe PSU supervisor did not
respond to that request.
January 15, 2016, Plaintiff had a hearing with a
“PRC” committee, which included Defendants K.
O'Dell (“O'Dell”), an offender class
specialist, and C. Francois (“Francois”), the
GBCI corrections program supervisor. Id. Plaintiff
informed them that a transfer to WSPF may prompt suicide
attempts, but they responded that “you are just going
to have to deal with it.” Id. Plaintiff
attached an exhibit to his complaint which appears to be a
report from that hearing. (Docket #1-2 at 5-6). The report
indicates that the move to WSPF was prompted by
Plaintiff's high security classification and his own
misbehavior. Id. As support for denying
Plaintiff's request to stay at GBCI, the committee cited
Plaintiff's crime (murder), his two recent major conduct
reports (both for assault), and certain unmet programming
requirements. Id. The report acknowledges
Plaintiff's threats of self-harm and says that his
statements “should be communicated to PSU and Security
staff at GBCI and at WSPF.” Id. at 5.
February 6, 2016, Defendant C.O. Turck (“Turck”)
told Plaintiff that he was being transferred to WSPF the next
day. (Docket #1 at 2). Plaintiff asked Turck to summon a PSU
worker and have him taken to an observation cell.
Id. He apparently did not do so. Id. When
Turck walked away, Plaintiff grabbed a razor and began
cutting his wrist. Id. Turck returned and told
Plaintiff to stop cutting himself, and Plaintiff refused.
Id. Turck then got a nearby sergeant involved, who
also told Plaintiff to stop. Id. Eventually, after
being threatened with pepper spray, Plaintiff stopped cutting
himself and was taken to “HSU, ” presumably the
“Health Services Unit, ” to “get cleaned
up.” Id. Plaintiff was then taken to an
observation cell in the restrictive housing unit.
Id. The next day, Plaintiff was transferred to Dodge
Correctional Institution, not WSPF; Plaintiff does not say
when the eventual transfer to WSPF occurred. Id.
alleges that if Turck would have gotten a PSU worker, he
never would have cut himself. Id. He maintains that,
pursuant to an administrative code provision, security staff
are required to tell a psychologist if an inmate threatens
suicide. Id. at 3. Plaintiff further alleges that
all Defendants were placed on notice of his risk of suicide.
Id. He believes that they should have placed him in
observation or otherwise obtained help from PSU. Id.
Plaintiff asserts that all Defendants were deliberately
indifferent to his serious medical needs, in violation of the
Eighth Amendment. Id.
for deliberate indifferent to an inmate's suicide risk
are legion in federal courts, and so extensive case law has
developed to interpret them. The basic formulation of the
claim involves an objective and a subjective component.
Collins v. Seeman, 462 F.3d 757, 760 (7th Cir.
2006). First, Plaintiff must show that the harm (or potential
harm) was objectively, sufficiently serious and a substantial
risk to his health. Id.; Farmer v. Brennan,
511 U.S. 825, 832 (1994). “It goes without saying that
‘suicide is a serious harm.'” Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001) (quoting
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261
(7th Cir. 1996)).
Plaintiff must establish that Defendants displayed deliberate
indifference to his risk of suicide. Collins, 462
F.3d at 761; Sanville, 266 F.3d at 733. This, in
turn, requires a dual showing that Defendants (1)
subjectively knew that Plaintiff was at substantial risk of
committing suicide and (2) were deliberately indifferent to
that risk. Matos ex rel. Matos v. O'Sullivan,
335 F.3d 553, 556 (7th Cir. 2003). As to the first prong,
Plaintiff must prove that Defendants knew-rather than merely
should have known-of a significant likelihood that he might
imminently seek to commit suicide. Estate of Novack ex
rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th
Cir. 2000); Matos, 335 F.3d at 557. Plaintiff's
allegations do not satisfy this element. For all Defendants
save Turck, the only warning they received from Plaintiff
about a suicide risk was his statements that a transfer to
WSPF might cause him to attempt suicide. None received any
indication that Plaintiff would imminently begin
self-harming activity, and indeed he did not; the first
alleged suicide attempt was weeks after he made the
statements. As to Turck, Plaintiff's statements were more
direct. He informed Turck that he wanted to speak with
psychological services right away but Turck ignored his
request. Still, Plaintiff does not allege that he told Turck
he was contemplating suicide, only that he desired to speak
with a psychologist. This is insufficient to put Turck on
notice of Plaintiff's potential for suicide. See
Pittmann ex rel. Hamilton v. County of Madison, Ill.,
746 F.3d 766, 776-78 (7th Cir. 2014) (“[A]
prisoner's mere request to see a psychiatric crisis
counselor does not, standing alone, put a prison officer on
notice of the imminent possibility of suicide.”).
the second prong, Plaintiff must establish that Defendants
failed to take reasonable steps to prevent him from
committing suicide. Estate of Novack, 226 F.3d at
529; Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir.
2005). This is a heavy burden; the Seventh Circuit has
emphasized that deliberate indifference “comprehends
more than mere negligence but less than the purposeful or
knowing infliction of harm.” Estate of Novack,
226 F.3d at 529; Peate v. McCann, 294 F.3d 879, 882
(7th Cir. 2002). Indeed, the Court of Appeals has
characterized the required showing “as ‘something
approaching a total unconcern for [the prisoner's]
welfare in the face of serious risks.'”
Collins, 462 F.3d at 762 (quoting Duane v.
Lane, 959 F.2d 673, 677 (7th Cir. 1992)). Accordingly,