United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
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).
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).
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.
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.
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)).
claims arise from a period when he was confined at the Green
Bay Correctional Institution. (Docket #1 at 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.
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
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.
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
spoke with Campbell on August 9, 2011. Id. at 6. He
asked that photographs be taken of his injuries, but Campbell
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.
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.
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.
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.
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.
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.
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 ...