United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge
who is incarcerated at the Milwaukee County Jail, filed a
pro se complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. (Docket #1).
This matter comes before the Court on Plaintiff's motion
to proceed in forma pauperis. (Docket #2).
the Court would first assess an initial partial filing fee
(“IPFF”) pursuant to 28 U.S.C. § 1915(b)(1).
However, Plaintiff's prison trust account records show
that, during his brief period of incarceration thus far, he
only momentarily had a positive balance in his account, and
he is currently well into the red. Consequently,
Plaintiff's IPFF as calculated using the statutory
formula would be zero, obviating the need for the Court to
assess it. Because the Prison Litigation Reform Act
(“PLRA”) mandates that a prisoner will not be
prohibited from bringing a civil action for the reason that
he lacks the assets and means to pay an IPFF, id.
§ 1915(b)(4), Plaintiff will be granted a waiver of the
IPFF in this case. However, he is still obligated to pay the
full filing fee pursuant to the installment scheme set forth
in the PLRA. See Id. § 1915(b)(1)-(2).
determined that Plaintiff need not pay the IPFF, the Court
next turns to screening his 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. Id. § 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); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d
879, 881(7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “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. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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)).
allegations concern an attack he suffered at the hands of a
fellow inmate as well as the medical care he thereafter
received. On November 13, 2017, he was attacked by a
“mentally ill” inmate while sitting in the
dayroom. (Docket #1 at 2). The inmate hit him repeatedly with
a chair. Id. The blows injured Plaintiff's left
hand and fingers. Id. Once correctional officers
subdued the attacker, medical staff were summoned to attend
to Plaintiff. Id.
they diagnosed him with swelling in one of the fingers of his
left hand. Id. at 3. He continued to complain of
severe finger pain for weeks, but medical staff refused to
give him pain medication. Id. Plaintiff underwent
two x-rays which showed no injury to his finger. Id.
Nevertheless, he continued to complain of chronic pain, and a
third x-ray showed that his finger was in fact broken.
Id. He was rushed to an appointment with an outside
specialist, who conducted immediate surgery on the finger.
complains of two things. First, he says that prison staff
failed to protect him from the attack by his fellow inmate.
Id. at 4. Second, Plaintiff claims that he was
provided constitutionally inadequate medical care.
allegations, while they appear straightforward, present
several difficulties. First, Plaintiff cannot proceed against
the inmate who attacked him. Section 1983 exists to remedy
constitutional violations by those acting under color of
state law, West v. Atkins, 487 U.S. 42, 49 (1988),
and a fellow inmate is not a state actor,
Gulley-Fernandez v. Naseer, No. 16-CV-133, 2016 WL
2636274, at *2 (E.D. Wis. May 5, 2016). If Plaintiff believes
he has a claim against the inmate for battery, that is a
matter for a state, not federal, court.
the Court must dismiss Plaintiff's failure-to-protect
claim. Such claims are rooted in the Eighth Amendment, which
imposes upon prison officials the duty to “take
reasonable measures to guarantee the safety of the inmates,
” including protecting them from other prisoners.
Farmer v. Brennan, 511 U.S. 825, 832 (1994). To
state a failure-to-protect claim, an inmate must allege that
(1) “he is incarcerated under conditions posing a
substantial risk of serious harm, ” and (2) the
defendants acted with “deliberate indifference”
to that risk. Id.; Brown v. Budz, 398 F.3d
904, 909 (7th Cir. 2005). “Deliberate
indifference” here means that “the defendants
knew of and disregarded [the] risk” of harm. Wilson
v. Ryder, 451 Fed.Appx. 588, 589 (7th Cir. 2011).
Further, “a generalized risk of violence is not enough,
for prisons are inherently dangerous places.”
Id. Instead, the prisoner must allege a tangible
threat to his safety, the risk of which is “so
great” that it is “almost certain to materialize
if nothing is done.” Brown, 398 F.3d at 911.
has not alleged facts giving rise to an inference that his
fellow inmate posed a substantial risk of serious harm, or
that Defendants acted with deliberate indifference to that
risk. Nowhere in his complaint does Plaintiff allege that any
Defendant knew or had any reason to know that the inmate in
question would attack anyone, other than accusing him of
being mentally ill. Unspecified “mental illness”
does not itself give rise to a propensity to physical
violence. If it led this inmate to attack on a ...