United States District Court, E.D. Wisconsin
AERION C. KING, Plaintiff,
JON LITSCHER, CATHY JESS, WARDEN SCOTT ECKSTEIN, STEVE SCHUELER, JOHN KIND, CATHERINE FRANCOIS, DR. GARY ANKARLO, DR. SCHMIDT, DR. MEYER, DR. STONEFELD, CO LOOSE, CO WHEATON, CO HOLMES, CO TIETGE, SGT. MEJIA, SGT. FRIEDEL, SGT. KOELLER, TONIA ROZMARYNOSKI, MICHAEL SCHULTZ, JAMES ELSINGER, LT. CUSHING, LT. REBECCA LENZ, CAPTAIN STEVENS, CAPTAIN EICHSTEDT, and KATHY LEMENS, Defendants.
Stadtmueller, U.S. District Judge.
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
Motions Regarding Filing Fee
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.
Screening of Plaintiff's Complaint
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. §
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)
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).
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.
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)).
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.
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.
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.
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.
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.
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.
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.
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.
plaintiff seeks monetary and injunctive relief, including a
mental health evaluation, permanent mental health housing,
and the assignment of a monitor.
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.
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 ...