United States District Court, E.D. Wisconsin
TOMMIE E. EVANS, Plaintiff,
MS. MARCHANT, et al., Defendants.
AMENDED SCREENING ORDER 
WILLIAM C. GRIESBACH, CHIEF JUDGE
The plaintiff Tommie Evans, who is currently incarcerated at
Wisconsin Secure Program Facility but was incarcerated at
Waupun Correctional Institution at all times relevant to the
complaint, 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
motion for leave to proceed without prepaying the full filing
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 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 $30.32. Plaintiff's motion
for leave to proceed without prepaying the filing fee will be
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 Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). 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 (citation omitted).
December 7, 2016, Evans alleges that he was told by the first
shift Sergeant John Doe that he was being transported to Dane
County Jail for a scheduled court appearance. Evans informed
John Doe that due to a previous injury, he had restrictions
that allowed him to use a sling and to be handcuffed in
front, rather than behind his back. John Doe contacted the
Restrictive Housing Unit to verify Evans' medical
restrictions. John Doe stated that he spoke with Nurse Jane
Doe, who stated that Evans did not have any medical
restrictions. John Doe then required Evans to be handcuffed
his back. While at the sally port, Evans produced
documentation verifying his restrictions. John Doe called the
Health Services Office, but they failed to acknowledge the
restrictions. Therefore, Evans was transported from Waupun to
the Dane County Jail without his medical restrictions being
observed, which caused great shoulder pain. Evans is alleging
claims of deliberate indifference against John Doe, Jane Doe,
and Ms. Marchant, the director of the Health Services Unit
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 the color of state law.
Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du
Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also
Gomez v. Toledo, 446 U.S. 635, 640 (1980).
state a claim for deliberate indifference to medical care, a
prisoner must show that (1) he suffered from an objectively
serious condition which created a substantial risk of harm
and (2) the defendants were aware of the risk and
intentionally disregarded it. Farmer v. Brennan, 511
U.S. 825, 842 (1970). A medical need is considered
sufficiently serious if the inmate's condition “has
been diagnosed by a physician mandating treatment or . . . is
so obvious that even a lay person would perceive the need for
a doctor's attention.” Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011) (citations omitted). Subjective
knowledge of the risk is required: “[A]n official's
failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation,
cannot under out cases be condemned as the infliction of
punishment.” Farmer, 511 U.S. at 838. Evidence
of negligence, medical malpractice, or even gross negligence
does not equate to deliberate indifference. Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).
Furthermore, dissatisfaction or disagreement with a
doctor's course of treatment is generally insufficient.
stage of the proceedings, Evans has stated a claim for
deliberate indifference against John Doe and Jane Doe
individually. Evans has pled that he informed and provided
document to John Doe of the medical restrictions requiring
his use of a sling and front handcuffs. John Doe still
required him to be handcuffed behind his back. Additionally,
accepting all factual allegations as true and liberally
construing them in favor of Evans, as I must at this stage of
the proceedings, Evans has stated a claim against Defendant
Jane Doe, who was called about his medical restrictions,
because John Doe was attempting to verify them before
handcuffing him, and denied their existence.
Evans has failed to state a claim against Marchant, the
director of the Health Services Unit. In order to recover
damages 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) (citing
Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th
Cir. 1994)). Marchant may not be held liable under a
respondeat superior or negligent supervision theory because
neither of those are grounds for liability under 42 U.S.C.
§ 1983. Wilson v. City of Chi., 6 F.3d 1233,
1241 (7th Cir. 1993). Therefore, Marchant cannot be held
liable for someone in HSU responding that Evans did not have
medical restrictions. Additionally, Evans does not allege
that Marchant was the HSU individual that denied that he had
restriction. Thus, Evans has failed to state a claim for
deliberate indifference against Marchant.
the court notes that Evans seeks to bring all of his claims
against the defendants in both their individual and their
official capacities. The claims against the defendants in
their official capacities must be dismissed. A suit against a
state official in his official capacity is not a suit against
the official, but rather a suit against the official's
office. Will v. Mich. Dep't of State Police, 491
U.S. 58, 71 (1989). Because the defendants are all state
officials, a claim against them in their official capacity is
a claim against the state. Id. The state is not a
“person” that would be suable under 42 U.S.C.
§ 1983. Id. at 65. Therefore, Evans cannot
bring a claim against these defendants in their official
court finds that the plaintiff may proceed on the claim of
deliberate indifference against Defendants John Doe and Jane
Doe in their individual capacities. Although there are no
named defendants to be served, the Wisconsin Department of
Justice will have notice of this suit and will be able to
assist Evans as he attempts to identify the individuals who
served in those roles. Additionally, the court will include
Brian Foster, Warden of Waupun, as a named defendant in a
limited capacity, until Evans is able to identify the Doe
defendants who were personally involved. See Donald v.
Cook Cty. Sheriff's Dep't, 95 F.3d 548, 555 n.3
(7th Cir. 1996). After the entry of this order, Evans must
serve discovery on Foster and the Wisconsin Department of
Justice asking who the employees in those rolls were at the
relevant time periods. Within 120 days of the date of this
Amended Order, however, Evans should file a motion requesting
to substitute the proper names of the defendants.
IS THEREFORE ORDERED that the plaintiff's motion
for leave to proceed in forma pauperis (ECF No. 2)
IS FURTHER ORDERED that plaintiff's claim