United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
Jose Sanchez, a Wisconsin state prisoner who is proceeding
pro se, filed a civil rights complaint alleging that
the defendants violated his Eighth Amendment rights at the
Dodge Correctional Institution (“DCI”). (Docket
#1). This matter comes before the Court on Plaintiff's
motion to proceed without prepayment of the filing fee.
(Docket #3). Plaintiff has been assessed and paid an initial
partial filing fee of $10.92. See 28 U.S.C. §
case is currently assigned to Magistrate Judge David E. Jones
and the parties have not had the opportunity to consent to
magistrate judge jurisdiction. Therefore, this matter was
randomly referred to this Court for the limited purpose of
screening the complaint. The case will be returned to
Magistrate Jones after entry of this Order.
Screening of the Plaintiff's Complaint
Court is required to 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. §
plaintiff must 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 need not plead specific
facts, and need only provide “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)).
“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).
factual content of the complaint must allow the Court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Id. at 679. First, the Court determines
whether the plaintiff's legal conclusions are supported
by factual allegations. Id. Legal conclusions not
supported by facts “are not entitled to the assumption
of truth.” Id. Second, the Court determines
whether the well-pleaded factual allegations “plausibly
give rise to an entitlement to relief.” Id.
The Court gives 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)).
26, 2016, Plaintiff got a “severe case of hives”
and experienced shortness of breath. (Docket #1 at 2). He
asked CO Marshall if he could go to the Health Services Unit
(“HSU”) and she refused because she
“didn't have time.” Id. A few hours
later, Plaintiff again asked to go to the HSU. Id.
CO Marshall allowed him to go to the HSU but made him walk
there on his own. Id.
arrived at the HSU and Nurse Garcia gave him a Benadryl.
Id. She then made Plaintiff walk back to his cell on
his own. Id. Later that day, around 5:00 p.m.,
Plaintiff still felt ill and requested to go to the HSU
again. Id. CO Marshall told Plaintiff that the HSU
“didn't want to see him.” Id. at
next two days, May 27 and May 28, 2016, Plaintiff had to walk
to the HSU on his own several more times to get Benadryl.
Id. at 3. These journeys caused a lot of physical
pain. Id. At some point between May 26 and May 28,
2016, Plaintiff told Doctor Richard Fuller about his symptoms
and the doctor refused to physically examine, treat, or
diagnose Plaintiff. Id. at 5. On May 28, 2016,
around 4:55 p.m., prison staff took Plaintiff to the
Intensive Care Unit (“ICU”) at the Waupun
Memorial Hospital Emergency Department. Id. at 3.
Plaintiff had to be “intubated.” Id. He
was released from the ICU a few days later on June 1, 2016.
Id. Plaintiff seeks injunctive and monetary relief.
Id. at 6.
state a claim under 42 U.S.C. § 1983, 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
ofMilwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Vill. of North Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)). The State of Wisconsin is not
a “person” within the meaning of Section 1983.