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Riley v. Franke

United States District Court, E.D. Wisconsin

September 5, 2017

SHAWN RILEY, Plaintiff,
v.
C.O. FRANKE, LT. CAMPBELL, CAPT. SCHULTZ, SGT. FRANCOIS, CATHERINE FRANCOIS, R.N. VAN VERKINTER, R.N. TREMEL, and R.N. JANE DOE #1, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge.

         1. INTRODUCTION

         Plaintiff, who is incarcerated at the Wisconsin Secure Program Facility, 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 #2). Plaintiff has been assessed and paid an initial partial filing fee of $13.49. 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 [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts; 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)); 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) 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); 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)).

         2. RELEVANT FACTS

         Plaintiff's claims arise from a period when he was confined at the Green Bay Correctional Institution. (Docket #1 at 1).[1] On August 5, 2011, he had a run-in with CO. Franke (“Franke”) during the passing out of Ramadan meals. Id. at 2. Franke was dropping the meals, which came in bags, on the filthy floors of the prisoners' cells. Id. Plaintiff perceived what Franke was doing and complained to Franke about it before he arrived at Plaintiff's cell. Id. at 1-2.

         Franke nevertheless dropped Plaintiff's meal on the ground. Id. at 2. Plaintiff alleges that this was due to Franke's dislike of Ramadan participants and Muslims in general. Id. Plaintiff immediately complained again, and the two had a heated, profanity-laden exchange. Id. Franke next set Plaintiff's milk on the cell trap door, which was open, and Plaintiff reached out to retrieve them. Id. He thought they were too warm and asked Franke to replace them with cold ones. Id. Franke refused, and when Plaintiff continued to complain, he brusquely pushed the milks into the cell and used his knee to shut the trap door onto Plaintiff's hand. Id. at 4. When Plaintiff exclaimed that he would file an inmate complaint about the incident, Franke looked at him and said, “You ain't gonna do shit!” before walking away. Id.

         Plaintiff hit the medical emergency button in his cell and requested medical attention for his hand injury. Id. A correctional officer came and spoke with Plaintiff briefly, left for a time, and then returned with another officer, Sgt. Francois Id. at 5. Sgt. Francois told Plaintiff that Lt. Campbell (“Campbell”), one of the supervisory correctional officers, ordered that Plaintiff would be under a back-of-cell restriction to avoid further instances of getting his hand caught in the cell trap door. Id. Plaintiff protested that he had done nothing wrong. Id. He asked for immediate medical attention and asked to speak with Campbell. Id.

         Francois called for medical staff to see Plaintiff. Id. While they waited, Plaintiff asked Sgt. Francois why Campbell had instituted the back-of-cell restriction without conducting a full investigation, including taking photographs of Plaintiff's injuries, and in a seeming effort to punish Plaintiff. Id. Sgt. Francois said that he did not know, but he would tell Campbell that Plaintiff wanted to speak with him. Id. Plaintiff alleges that Campbell was trying to cover up Franke's wrongdoing by refusing to gather evidence about the assault. Id. Plaintiff claims that he suffered the back-of-cell restriction, which forced him to kneel six times a day in order to be fed, for a month. Id.

         Plaintiff spoke with Campbell on August 9, 2011. Id. at 6. He asked that photographs be taken of his injuries, but Campbell refused. Id.

         Next, Plaintiff claims that he filed a timely offender complaint against Campbell with the prison's Inmate Complaint Examiner (“ICE”), Catherine Francois (“Francois”). Id. According to him, she returned the complaint to him with instructions that he attempt informal resolution of the matter first although she knew that he had already tried this and knew that she would reject any refiled complaint as untimely. Id. Plaintiff claims that she was showing favoritism to her husband, Sgt. Francois. Id.

         Plaintiff filed another offender complaint, this time against Franke for his alleged assault, on August 19, 2011. Id. Francois acted as the ICE in that case. Id. The complaint was dismissed, though Plaintiff gives little detail about the investigation and disposition. Id. He appears to assert that the investigation was inadequate, again because no one took photos of his hand. Id. He says that this was another instance of Francois' favoritism toward correctional officers. Id.

         Plaintiff then claims that Franke, in an effort to cover up his assault, issued a retaliatory and bogus conduct report against him. Id. Plaintiff alleges that Franke told other correctional officers, including Campbell and Sgt. Francois, that he had in fact used excessive force against Plaintiff and that these individuals encouraged him to cover up his actions by issuing a fabricated conduct report that portrayed Plaintiff as the aggressor. Id. Plaintiff points to what he sees as factual inconsistencies in the conduct report that reveal it as a fabrication. Id.

         The next step in the cover-up came when Plaintiff had a hearing on the conduct report before Capt. Schultz (“Schultz”). Id. at 7. Plaintiff accuses Schultz of failing to be impartial during the hearing and relying on the allegedly false statements of the officers. Id. Plaintiff was given a 21-day loss of recreation privileges for his conduct. Id.

         Plaintiff's final allegations relate to the medical care he received after his injury by Franke. Id. He was first seen by nurse Tremel (“Tremel”) about an hour after his injury. Id. However, Plaintiff alleges that Tremel did not fully appreciate the severity of his injuries and how they would affect his daily activities, including his five daily prayers. Id. Plaintiff was prescribed hot and cold packs and pain medication, but claims that he was denied medication because the correctional officers distributing it said it had run out and not been refilled. Id.

         Plaintiff was seen several more times by prison medical staff, but each time the severity of his injuries was overlooked or downplayed. Id. Plaintiff says that his continued evaluation and treatment belies the notion that his injuries were minor. Id. However, an x-ray showed no fractures in Plaintiff's hand. Id. He rejoins that on the basis of the x-ray results, medical staff dismissed his complaints and allowed his injuries to heal, “thereby concealing [them].” Id. Plaintiff asserts that after his transfer to the Wisconsin Secure Program Facility on September 20, 2011, he was found to be suffering pain resulting from deep tissue bruising and a stretched median nerve. Id. at 8. Treatment for his pain is ongoing. Id.

         On September 2, 2011, Plaintiff filed an offender complaint against nurse Van Verkinter (“Van Verkinter”), alleging that the nurse refused him treatment and aggressively manipulated his hands during evaluation. Id. at 7. Francois reviewed the complaint and returned it to Plaintiff, instructing him to first attempt informal resolution of the problem. Id. at 7-8. When Plaintiff told Francois that ...


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