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Moss v. Krause

United States District Court, E.D. Wisconsin

February 28, 2018

ALEXANDER MOSS, Plaintiff,
v.
C.O. KRAUSE, C.O. KELLY, C.O. BARBEAU, C.O. DEMERS, SGT. WOLF, SGT. SCHOUTEN, LT. HAYNES, CAPTAIN BAUER, and DEPARTMENT OF CORRECTIONS, Defendants.

          ORDER

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

         Plaintiff, who is incarcerated at Columbia Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated while he was incarcerated at Waupun Correctional Institution (“Waupun”). (Docket #1). This matter comes before the Court on Plaintiff's motion to proceed in forma pauperis. (Docket #2). Plaintiff has been assessed and paid an initial partial filing fee of $10.24. 28 U.S.C. § 1915(b)(4).

         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. County 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 the events of a single evening: December 21, 2016. (Docket #1 at 2). On that day, Plaintiff was housed in Waupun's restrictive housing unit on observation status. Id. at 3. At 5:00 p.m., Defendant Krause, a correctional officer, was doing observation checks and came by Plaintiff's cell. Id. at 1. Plaintiff asked for his face towel and soap and she refused without giving a reason. Id. He responded that he needed to be placed in bed restraints and began to bang his head on the window of his cell door. Id. Krause walked away. Id.

         Plaintiff then pressed the call button in his cell and told Defendant Kelly, a correctional officer, that he was going to continue self-harming activities. Id. at 1-2. Defendant Kelly's response is not reported in the complaint. See Id. Plaintiff started banging his head again, in view of the camera inside his cell. Id. at 2. Defendant Barbeau, another correctional officer, then approached the cell door and asked what was going on. Id. Plaintiff told her that he had not received the items he requested, and Barbeau agreed to consult with Krause. Id. Krause came and spoke with Plaintiff about the items and agreed to provide them if he calmed down. Id. He did so for about twenty minutes, but Krause did not provide the items he had requested, so he began banging his head again, from about 5:30 to 5:45 p.m. Id.

         Another correctional officer, Defendant Captain Bauer, did an observation round sometime thereafter and, according to Plaintiff, witnessed Plaintiff's injuries. Id. Plaintiff does not describe the nature of his injuries at this point. Id. Plaintiff asked for medical treatment but Bauer refused, telling Plaintiff that he looked fine. Id. Bauer then walked away. Id. Plaintiff again began to bang his head. Id. Similarly, around this time Defendant Sergeant Wolf passed by Plaintiff's cell and ignored his plea for medical care. Id. at 3.

         Barbeau and another officer, Defendant Sergeant Schouten, came to Plaintiff's cell some time later to distribute medication. Id. at 2. At this juncture, Plaintiff told Barbeau that he needed medical care and she advised him to stop banging his head. Id. Plaintiff repeated his request to Schouten, who said he would inform the health services unit of the request. Id.

         Later, between 8:30 and 9:30 p.m., Defendant Lieutenant Haynes did a round in the restrictive housing unit. Id. He witnessed Plaintiff's head bleeding. Id. Plaintiff requested medical care, and Haynes replied that he would let the medical personnel know but could not force them to see Plaintiff. Id. at 2-3. Thereafter, Defendant Demers, another correctional officer, walked past Plaintiff's cell and Plaintiff stopped him to ask for medical assistance. Id. at 3. Plaintiff does not provide Demers' response, but he complains that no medical personnel ever came to see him. Id. As a result, he started banging his head yet again, this time until 11:30 p.m. Id.

         At around 12:55 a.m. on the morning of December 22, 2016, Captain Larson, who is not a defendant in this case, pulled Plaintiff out of his cell to be seen by the health services unit. Whatever Plaintiff's diagnosis and treatment ultimately were, he does not say. See id.

         Plaintiff contends that Defendants violated his rights under the Eighth Amendment. That Amendment prohibits “cruel and unusual punishments.” U.S. Const. Amend. VIII. It imposes a duty on prison officials to take reasonable measures to guarantee an inmate's safety and to ensure that inmates receive adequate medical care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). A prison official's “deliberate indifference” to a prisoner's medical needs or to a substantial risk of serious harm violates the Eighth Amendment. Id. at 828; Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).

         The deliberate indifference inquiry has two components. “The official must have subjective knowledge of the risk to the inmate's health, and the official also must disregard that risk.” Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010); Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006). Negligence, or even gross negligence, cannot support a claim of deliberate indifference. Estelle, 429 U.S. at 105-06. Rather, liability requires conduct that approaches intentional ...


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