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Peck v. Schmidt

United States District Court, E.D. Wisconsin

January 10, 2018

DENNIS JAMES PECK, Plaintiff,
v.
RICHARD SCHMIDT, JANE AND JOHN DOE JAIL OFFICERS, JANE AND JOHN DOE MEDICAL STAFF, JANE AND JOHN DOE MOBILE X-RAY EMPLOYEES, and JOHN DOE INMATE, Defendants.

          ORDER

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

         Plaintiff, 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).

         Normally, 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).

         Having 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. § 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); 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).

         To 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.

         In 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.

         To 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)).

         Plaintiff's 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.

         Initially, 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. Id.

         Plaintiff 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. Id.

         Plaintiff's 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.

         Second, 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.

         Plaintiff 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 ...


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