United States District Court, E.D. Wisconsin
Stadtmueler U.S. District Judge.
Frank Paul Sorano, Jr., who is incarcerated at the Milwaukee
County Jail (the “Jail”), proceeds in this matter
pro se. He filed a complaint alleging that the
defendants violated his constitutional rights. (Docket #1).
This matter comes before the court on Plaintiff's
petition to proceed without prepayment of the filing fee
(in forma pauperis). (Docket #2). Plaintiff has been
assessed and paid an initial partial filing fee of $2.58.
See 28 U.S.C. § 1915(b)(1).
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. Section 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. Vill. 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,
alleges that on October 15, 2017, Defendant C.O. Suffold
(“Suffold”) ordered him to serve another inmate,
Roskum, with a food tray. (Docket #1 at 2). Roskum was known
to be violent and severely mentally-ill. Id. When
Plaintiff attempted to hand the food tray into Roskum's
cell, he tried to escape the cell. Id. at 3. In the
ensuing scuffle, Suffold closed Plaintiff's hand in the
cell door. Id. This caused “severe pain and .
. . numerous injuries” to Plaintiff's hand.
Id. Plaintiff further alleges that the pain is
ongoing and that the damage interferes with his sleep and
aggravated other of his health conditions. Id. at 5.
complaint states a claim against Suffold under the Eighth
Amendment. The Eighth Amendment's proscription against
cruel and unusual punishment protects prisoners from the
“unnecessary and wanton infliction of pain” by
the state. Hudson v. McMillian, 503 U.S. 1, 5 (1992)
(citation and internal quotations omitted). The Court views
Plaintiff's claim as one for failure to protect him from
a known danger. The Seventh Circuit explains the contours of
such a claim:
A prison official is liable for failing to protect an inmate
from another prisoner only if the official knows of and
disregards an excessive risk to inmate health or safety. A
claim that a prison official was deliberately indifferent to
such a risk has both an objective and a subjective component.
First, the harm to which the prisoner was exposed must be an
objectively serious one. . . . [T]he subjective prong of the
deliberate indifference claim . . . requires that the
official must have actual, and not merely constructive,
knowledge of the risk in order to be held liable;
specifically, he must both be aware of facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw that inference.
Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir.
2015) (citations and quotations omitted).
is analogous. Gevas reported that his cellmate threatened to
stab him, but prison officials did nothing. Id. at
477-79. They later stated that Gevas could have brought the
matter to a head by refusing to enter his cell, but that
would entail violating an order and being subject to
discipline. Id. Gevas did not want to suffer this
discipline and so continued to warn the prison officials via
other channels. Id. Gevas' cellmate eventually
carried out his threat. Id. The Court of Appeals
held that Gevas need not be expected to defy an order to
ensure his own safety. Id. at 484. Like Gevas,
Plaintiff was exposed to danger by Suffold's order. The
burden of ensuring his safety lay with Suffold, namely by
rescinding the order, rather than with Plaintiff, by refusing
to comply with it.
the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): failure to
protect Plaintiff from the risk of harm occasioned by Roskum,
by Defendant CO. Suffold, in violation of the Eighth
Amendment. The Doe defendant will be dismissed; Plaintiff
makes no mention of them in the body of his complaint.
IT IS ORDERED that the plaintiff's
motion for leave to proceed without prepayment of the filing
fee (in forma pauperis) ...