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King v. Litscher

United States District Court, E.D. Wisconsin

September 28, 2017

AERION C. KING, Plaintiff,


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

         On February 14, 2017, plaintiff Aerion C. King, a state prisoner, filed a pro se complaint under 42 U.S.C. § 1983, along with a motion for leave to proceed without prepayment of the filing fee (in forma pauperis), a motion for preliminary injunction, and a motion to appoint counsel. (Docket #1, #2, #5, #6). The case was assigned to United States Magistrate Judge William E. Duffin, and the plaintiff consented to jurisdiction by a magistrate judge on February 27, 2017. (Docket #10). The plaintiff later filed a motion for extension of time to pay the filing fee and an unsigned motion for emergency preliminary injunction. (Docket #11, #17). The defendants have not been served with the complaint and, therefore, have not had an opportunity to consent to magistrate jurisdiction. Accordingly, the case was referred to this Court on July 13, 2017, for screening of the complaint and resolution of the pending motions. After the case was referred, the plaintiff filed a motion to recruit counsel and an amended motion to recruit counsel, (Docket #19, #20), and another inmate filed a motion for leave to appear as next friend for the plaintiff, (Docket #21). All of these matters are now before this Court. The case will be returned to Magistrate Judge Duffin after entry of this Order.

         1. Motions Regarding Filing Fee

         The plaintiff has been assessed and paid an initial partial filing fee of $1.67, see 28 U.S.C. § 1915(b)(1), and the court will grant the plaintiff's request to proceed in forma pauperis. (Docket #2). The court will deny as moot the plaintiff's motion for extension of time to pay the filing fee because the Court received the initial partial filing fee before the motion. (Docket #3).

         2. Screening of Plaintiff's Complaint

         The Court shall screen complaints brought by prisoners seeking relief against a governmental entity or an 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. 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). 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. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

         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 and 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)). However, a complaint that offers mere “labels and conclusions” or a “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. (citing Twombly, 550 U.S. at 556). The complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying 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, second, “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) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the 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's complaint presents claims regarding the mental health treatment he received at Green Bay Correctional Institution and the failure of some of the defendants to prevent the plaintiff from harming himself. Between October and December 2016, the plaintiff had several instances of self-harm.

         In the first instance, defendants CO Tietge and Sgt. Koeller watched the plaintiff cut himself and overdose on medication. A policy requires staff members to stay at the cell door until assistance arrives after an inmate expresses self-harm. The plaintiff's life was at risk because these defendants violated that policy; he was allowed to engage in self-harm.

         In a second instance, defendant CO Loose left a hard plastic medication cup with the plaintiff while he was on observation status with a restriction on the possession of sharp objects, even after the plaintiff told Loose he was going to cut himself. Loose walked away, and the plaintiff began to cut himself. Another officer who is not a defendant observed the plaintiff's actions and got him medical attention.

         On a third occasion, defendants CO Wheaton and Sgt. Friedel observed the plaintiff taking an overdose of medication and did not stop him. The plaintiff was sent to the emergency room, treated, and sent back to observation. The plaintiff then started to hit his head while defendant James Elsinger watched. The plaintiff believes this was preventable because interventions such as crisis psychological services or emergency transfer to the Wisconsin Resource Center (“WRC”) could have been used.

         In what seems to be a fourth incident, the plaintiff alleges that defendant Tonia Rozmarynoski failed to protect the plaintiff when he overdosed on medication, cut himself, and banged his head repeatedly. The plaintiff also believes defendants Elsinger and Lt. Cushing subsequently mishandled the incident by not ordering an emergency transfer to the WRC.

         On a fifth occasion, defendants Michael Schultz and Kathy Lemens allowed the plaintiff to remain in bed restraints for four hours with a tie-down mechanism cutting the plaintiff's ankle, causing the plaintiff extreme pain.

         The plaintiff requested medication related to ADHD multiple times, but the nature of the medication requires a special evaluation. Defendants Dr. Ankarlo and Dr. Schmidt never performed the evaluation, even though a non-defendant Dr. Zirbel has attempted to secure this evaluation and treatment for the plaintiff. Most recently, the plaintiff spoke to defendant Dr. Gary Meyer, who denied the ADHD medications and instead prescribed anti-psychotic medications that the plaintiff believes are inconsistent with his diagnosis and harmful to his system.

         The plaintiff's mental health continues to deteriorate while he remains in segregation. He is “sometimes wholly unaware of the consequences of his actions, ” which result in an extended segregation term. (Docket #1 at 13). According to the plaintiff, all the defendants are aware of the long-term risks of segregation, and a continued stay in segregation is detrimental to the plaintiff's overall mental health. The plaintiff says that he is in need of care and long-term treatment.

         The plaintiff seeks monetary and injunctive relief, including a mental health evaluation, permanent mental health housing, and the assignment of a monitor.

         Plaintiff's claims implicate his Eighth Amendment rights in several ways. First, to state a failure to protect claim, a plaintiff must allege that the correctional officers knew that he faced a substantial risk of serious harm and deliberately disregarded that risk. Key v. Kelitwenzew, 630 Fed.Appx. 620, 623 (7th Cir. 2015) (citing Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012)). The plaintiff may proceed on Eighth Amendment claims against defendants Tietge, Koeller, Loose, Wheaton, Friedel, Elsinger, Rozmarynoski, and Cushing that they failed to protect the plaintiff from harming himself.

         Second, the plaintiff may proceed on an Eighth Amendment claim against defendants Schultz and Lemens that keeping the plaintiff in restraints that were causing him pain was deliberate indifference. Prison officials are deliberately indifferent to deprivations suffered by inmates if they have knowledge of the condition but ...

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