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Sanchez v. Marshall

United States District Court, E.D. Wisconsin

November 8, 2017

JOSE SANCHEZ, Plaintiff,


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

         Plaintiff 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. § 1915(b)(1).

         This 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.

         1. Screening of the Plaintiff's Complaint

         The 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. § 1915A(b).

         The 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).

         The 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.

         Federal 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)).

         1.1 Factual Allegations

         On May 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.

         Plaintiff 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 2-3.

         For the 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.

         1.2 Legal Analysis

         To 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. ...

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