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Balsewicz v. Bartow

United States District Court, E.D. Wisconsin

June 12, 2017

JOHN H. BALSEWICZ, also known as MELISSA BALSEWICZ, Plaintiff,
v.
BYRAN BARTOW, TIMOTHY LUNDQUIST, CRAIG BLUMER, SGT. DARRYL FRANKLIN, EDWARD KREMER, DEE KAPITZKE, GERALD LENNOP, MICHAEL HELMEID, DR. FLECK, LINDSAY DANFORTH, JOHN BESSERT, BRIAN SCHRAA, JOHN LENZ, RENATA BACON, and JENNIFER JRNKA, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         Plaintiff, who is incarcerated at Waupun Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that her civil rights were violated. (Docket #1). This matter comes before the Court on Plaintiff's motion to proceed in forma pauperis. (Docket #2). Plaintiff has been assessed and paid an initial partial filing fee of $35.71. 28 U.S.C. § 1915(b)(4).

         The 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).

         A claim 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); Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).

         To 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 [she] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts; her 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)); 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. The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.

         In considering whether a complaint states a claim, courts should first “identif[y] 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.

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: (1) she was deprived of a right secured by the Constitution or laws of the United States; and (2) the deprivation was visited upon her 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); Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give 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 she has gender dysphoria. Her allegations in this case arise from Defendants' alleged failure to treat Plaintiff's suicidal tendencies related to this condition. She alleges that the relevant events occurred while she was incarcerated at the Wisconsin Resource Center (“WRC”) in Winnebago, Wisconsin. (Docket #1 at 4). Defendants are various employees at that institution. Id. The Court will explain Plaintiff's claims below, but notes at the outset that Plaintiff's allegations suffer from a lack of detail as to actors and dates. This will render the narrative somewhat disjointed.

         Plaintiff alleges that she suffers from depression, bipolar disorder, and has suicidal ideation as a result of her gender dysphoria. Id. at 5. She received “dialectical behavioral treatment” (“DBT”)[1] at WRC for some unspecified period. See Id. While there, she claims that the testing results that confirmed her gender dysphoria were not sent to the “G.D. Committee” for further consideration, including the possible approval of hormone therapy for Plaintiff. Id. at 6. She asserts that WRC staff, none of whom are identified specifically, lied to her about the fact that the results had been sent to the Committee. Id. Plaintiff claims that these lies caused an 11-month delay in her receiving hormone therapy. Id. Initially, she submitted requests for medical care regarding the delay. Id. Apparently, they were not answered to her satisfaction, so she filed an inmate complaint on the matter which was eventually rejected. Id.

         On some later date, after being housed at another facility for a time, Plaintiff was returned to WRC for further DBT. Id. Plaintiff claims the treatment was not designed for treating transgendered individuals. Id. Nor were there, in her opinion, any staff qualified to run groups, programs, or classes regarding LGBT issues. Id. She also alleges that while at WRC, certain unnamed staff members told her that the WRC director, Byran Bartow (“Bartow”), said that he did not want transgendered individuals like Plaintiff at his facility. Id. These factors caused Plaintiff's depression to worsen, and she warned some unspecified staff members that she would engage in self-harm. Id. She also filed another inmate complaint about these problems, which was rejected. Id.

         At some point either during or after this second round of treatment at WRC, Plaintiff sent a request for care to Dr. Craig Blumer (“Dr. Blumer”), the WRC clinical director. Id. Although she seems to think that DBT is not the appropriate therapy for her, Plaintiff asked Dr. Blumer to keep her in that therapy group. Id. She also explained her complaints about the failure to transmit her medical reports to the G.D. Committee, and WRC's failure to provide qualified staff to treat LGBT issues. Id. Sometime thereafter, Plaintiff met with Dr. Blumer, stated that her depression was worsening, and warned Dr. Blumer that she would commit self-harm or suicide “in an attempt to get sexual reassignment surgery” or “gender reassignment surgery.” Id. She states that her warning “fell on deaf ears” and that Dr. Blumer even tried to expunge records of her medical care request and their conversation. Id. Again, Plaintiff submitted an inmate grievance on these matters which was again rejected. Id.

         Plaintiff next reports that while at WRC, she threatened self-harm in the form of castration-specifically, she told Sergeant Darryl Franklin (“Franklin”), social worker Jennifer L. Jrnka (“Jrnka”), psychological associate Lindsay E. Danforth (“Danforth”), and psychological associate Spiegelberg (whose first name is not given) that she planned to go outside and allow animals to mutilate her genitals. Id. at 7-8. They apparently ignored these suggestions, which Plaintiff alleges constituted deliberate indifference to her self-harm ideations. Id. Another inmate grievance and rejection ensued. Id. at 8.

         At another time during her second stay at WRC-perhaps in late 2016-Plaintiff claims she told psychological care technicians John Bessert (“Bessert”), Brian Schraa (“Schraa”), and John K. Lenz (“Lenz”) that she had thoughts of self-harm or suicide. Id. at 8. Plaintiff alleges that none responded satisfactorily to these threats, noting that Plaintiff lacked a plan or intent to carry out the actions. Id. Plaintiff claims that these individuals did not even document her reported threats of self-harm. Id. When Plaintiff spoke with psychological care supervisor Gerald Lennop (“Lennop”) about the matter, he agreed that something more should have been done. Id. Plaintiff filed another grievance on these issues, and it was rejected like the others. Id.

         The remainder of Plaintiff's complaint describes three different suicide attempts she undertook in December 2016. First, on December 16, during a meeting with Jrnka, Plaintiff reiterated her thoughts of self-harm and said “my preference is to hang-come in on a cord, go out on a cord!” Id. at 9. She also threatened to overdose on medication at or around the time she would hang herself. Id. It appears that Plaintiff was thereafter moved into the restrictive housing unit (“RHU”) on “temporary lock-up” (“TLU”) status after making these threats. Id. Some staff members, including Jrnka, Danforth, and ...


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