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Walker v. Ludvigson

United States District Court, E.D. Wisconsin

September 11, 2017

DE'VON L. WALKER, Plaintiff,
v.
PAUL LUDVIGSON, et al., Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 4) AND SCREENING PLAINTIFF'S COMPLAINT

          HON PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed this lawsuit under 42 U.S.C. §983, dkt. no. 1, along with a motion for leave to proceed without prepayment of the filing fee, dkt. no. 2. This order resolves that motion and screens the plaintiff's complaint.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the case filing fee, as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On November 30, 2016, the court ordered the plaintiff to pay an initial partial filing fee of $4.83 on or before December 23, 2016. Dkt. No. 6. The plaintiff failed to pay the fee on time, and on January 6, 2017, the court entered an order to show cause. Dkt. No. 7. The court received the initial partial filing fee on January 9, 2017. The court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee, and will require the plaintiff to pay the remainder of the filing fee over time as explained at the end of this decision.

         II. Screening the Plaintiff's Complaint

         The law requires the court 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 if the plaintiff raises 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. §1915A(b).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To proceed 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 defendant was 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 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 gives a pro se plaintiff's 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)).

         A. The Plaintiff's Allegations

         The plaintiff's claims relate to two documented suicide attempts by the plaintiff and the way that staff members handled them, both before and after the attempts. Dkt. No. 1 at 5.

         1. First Suicide Attempt

         On November 5, 2014, at approximately 3:00 p.m., the plaintiff got the attention of defendant Derek Dekeyser, the range officer on the plaintiff's segregation unit. Id. The plaintiff told Dekeyser that he was depressed and suicidal and was having suicidal thoughts. Id. at 5-6. Dekeyser said he would get the plaintiff some help. Id. at 6. Dekeyser returned to the plaintiff's cell about an hour later with defendant correctional officer Randy Gerritson, defendant supervising officer Kyle Tritt, and defendant psychological associate Paul Ludvigson. Id. at 6-7. The group spoke to the plaintiff for several minutes, and the plaintiff told them all that he was suicidal and having suicidal thoughts. Id. at 7. The group debated, and ultimately concurred in a decision that the plaintiff could stay in his current cell and that he did not need further treatment at that time. Id.

         At approximately 4:30 p.m., the plaintiff intentionally consumed over sixty pills, including acetaminophen and ibuprofen. Id. The plaintiff continued to take pills for more than an hour, and ultimately ingested more than eighty pills. Id. Sometime after 6:00 p.m., the plaintiff became extremely ill; he was vomiting profusely. Id. When Dekeyser made a wellness check, he noticed the plaintiff's condition, and asked the plaintiff what was wrong. Id. The plaintiff told Dekeyser that he had ingested more than eighty pills. Id. The plaintiff also told Dekeyser that he had swallowed a screw and multiple staples. Id. Dekeyser radioed for assistance, and Gerritson and Tritt came to the plaintiff's cell a couple of minutes later. Id. They placed the plaintiff in restraints and took him to the restrictive housing unit for a medical evaluation and eventual psychological evaluation. Id.

         When the plaintiff arrived at the restrictive housing unit, he was strip searched, placed in a smock and placed in mechanical restraints. Id. He was taken to the nurse's station, with his wrists handcuffed behind his back and shackles on both ankles, to be medically evaluated. Id. Defendant ...


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