United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE
Plaintiff George Peters, who is incarcerated at Kettle
Moraine Correctional Institution, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. This matter comes before the
court on the plaintiff's petition for leave to proceed
without prepaying the full filing fee.
is required to pay the $350.00 statutory filing fee for this
action. See 28 U.S.C. § 1915(b)(1). If a
prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing fee of his complaint, as required under
28 U.S.C. § 1915(a)(2), and has been assessed and paid
an initial partial filing fee of $1.10. Plaintiff's
motion to proceed in forma pauperis will be granted.
court is required 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 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. 28 U.S.C. §
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); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
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). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). The court accepts the factual allegations as true
and liberally construes them in the plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir.
2013). Nevertheless, the complaint's allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
complaint alleges that on May 1, 2017 Captain Berg, Sergeant
Nozario, and unit 1 staff officers went to transfer Peters
from his cell to unit 14. At that time, Peters notified the
officers that he had an injury to his right shoulder that
prevented him from putting his arms behind his back. Staff
then allegedly forced his arms behind his back to place
handcuffs on him, causing injury to Peters's right
rotator cuff. Specifically Peters alleges that his right
should was popped out of the joint and that a previous
surgical repair of his shoulder was irrevocably damaged.
Peters then submitted requests to be seen to Bill McCreedy,
the director of the Hospital Services Unit
(“HSU”), on May 2 and May 4, 2017 but was not
seen until eight days later.
Eighth Amendment to the Constitution prohibits cruel and
unusual punishment. U.S. Const. Amend. IIX. Obviously,
correctional officers may lawfully use force against inmates
in their custody when necessary to maintain or restore
discipline, order and security. A policy of placing handcuffs
on prisoners during transport would seem to further such
goals. But when prison officials maliciously or sadistically
use force to cause harm, an Eighth Amendment violation
occurs. Wilkins v. Gaddy, 559 U.S. 34, 37 (2010).
If, as Peters alleges, guards disregarded the prior injury to
his shoulder and forced his hands behind his back in order to
place handcuffs on him, thereby causing injury to his rotator
cuff, he may have an Eighth Amendment claim against them.
also well-established that deliberate indifference to the
serious medical needs of a person held in custody violates
his or her constitutional rights. Estelle v. Gamble,
429 U.S. 97, 104 (1976); Jackson v. Ill. Medi-Car,
Inc., 300 F.3d 760, 764 (7th Cir. 2002). To establish
liability, a prisoner must show (1) that his medical need was
objectively serious; and (2) that the official acted with
deliberate indifference to the prisoner's health or
safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
A serious medical need is “one that has been diagnosed
by a physician as mandating treatment or one that is so
obvious that even a lay person would recognize the necessity
for a doctor's attention.” Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). A
“delay in treating non-life-threatening but painful
conditions may constitute deliberate indifference if the
delay exacerbated the injury or unnecessarily prolonged an
inmate's pain.” Arnett v. Webster, 658
F.3d 742, 753 (7th Cir. 2011) (citing McGowan v.
Hulick, 612 F.3d 636, 640 (7th Cir. 2010)).
stage of the proceedings, Peters has stated an Eighth
Amendment claim. Based on the facts stated above, I cannot
say that the guard's use of force against him, given his
alleged preexisting injury, was not excessive. I am also
unable to say Peters's medical condition does not
constitute a serious medical need or that prison officials
did not demonstrate deliberate indifference to his condition.
recover under § 1983 a plaintiff must establish that a
defendant was personally responsible for the deprivation of a
constitutional right. Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995). An official satisfies the personal
responsibility requirement of § 1983 if the conduct
causing the constitutional deprivation occurs at his
direction or with his knowledge and consent. Id. At
this stage of the litigation, Peters may proceed against
McCreedy based upon his allegation that McCreedy knew of his
injury yet delayed providing treatment for eight days. Peters
may also proceed on his claim against Captain Berg and
Sergeant Nozario that they knew of the pre-existing injury to
his shoulder, but nevertheless forced his hands behind his
back thereby causing further damage.
IS THEREFORE ORDERED that the plaintiff's motion
for leave to proceed in forma pauperis be and hereby
IS FURTHER ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this court, copies of plaintiff's complaint and this
order are being electronically sent today to the Wisconsin
Department of Justice for service on the state defendants.
IS ALSO ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice
and this court, the defendants shall file a responsive
pleading to the complaint within sixty days of receiving
electronic notice of this order.
IS FURTHER ORDERED that the Secretary of the
Wisconsin Department of Corrections or his designee shall
collect from the plaintiff's prison trust account the
$348.90 balance of the filing fee by collecting monthly
payments from the plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to the prisoner's trust account and forwarding
payments to the clerk of the court each time the amount in
the account exceeds $10 in ...