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Swan v. Butke

United States District Court, E.D. Wisconsin

March 5, 2018

WILLIAM C. SWAN, Plaintiff,



         On October 26, 2017, the plaintiff filed a complaint under 42 U.S.C. §1983, alleging that the defendants were deliberately indifferent to and negligent in their handling of his serious medical needs. Dkt. No. 1. He also filed two motions for leave to proceed without prepayment of the filing fee. Dkt. Nos. 2, 3. This decision resolves the plaintiff's motions and screens his complaint.

         This case currently is assigned to Magistrate Judge William E. Duffin. Although the plaintiff has consented to Judge Duffin hearing and deciding the case, the defendants have not yet had the opportunity to decide whether to consent, because until now, the court has not screened the complaint and decided whether it should be served on the defendants. Because both parties have not yet consented to the magistrate judge hearing the case, the district court judge will screen the complaint.

         I. Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. §1915. One of those requirements is that the prisoner pay an initial partial filing fee. On October 26, 2017, the plaintiff filed two motions to proceed without prepayment of the filing fee under 28 U.S.C. §1915. On October 30, 2017, Judge Duffin ordered him to pay an initial partial filing fee of $2.02. Dkt. No. 6. The court received the partial filing fee on November 14, 2017. Because the plaintiff has paid the partial filing fee, the court will grant his first motion to proceed without prepaying the filing fee, dkt. no. 26, and will require him to pay the remainder of the $350 filing fee over time as explained at the end of this decision. The court will deny as moot the plaintiff's second motion to proceed without prepaying the filing fee. Dkt. No. 3.

         II. Screening of the Complaint

         The law requires the court 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 part of it, 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). The court may 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) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint that offers mere “labels and conclusions, ” however, 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).

         In considering whether a complaint states a claim, district courts follow the principles 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. Second, 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) (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). The court gives a pro se plaintiff's 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)).

         A. Factual Allegations

         The plaintiff has sued “Walworth County Jail officials, ” Sgt. Stacey Butke, Officer Klowein, Officer Billington, Aramark Food Service officials, Debbie LNU and Joyce LNU. Dkt. No. 1 at 1.

         The plaintiff alleges that on July 24, 2016, while he was incarcerated at the Walworth County Jail (WCJ), he was working in the main kitchen at around 11:20 in the morning. Id. at 3. He says that Debbie, an Aramark employee[1], ordered him to empty the garbage in the cooking area. Id. The cooking area was new to the plaintiff and unfamiliar to him; he did not receive any new training before being sent to the cooking area. Id. at 5. As the plaintiff was going to get the garbage, he walked past a kettle and slipped on the wet floor, falling into “an open drain pit” which wasn't covered. Id. at 3. He states that the pit was open because another inmate had been cleaning it out, but had been called away to help on the line. Id. The plaintiff says that when he fell into the pit, he “injured his left arm, shoulder, hip and lower back.” Id. He says that other inmates saw the incident, and that the incident was recorded on a nearby security camera. Id.

         After the plaintiff fell into the pit, two inmates lifted him out, and immediately notified Supervisor Joyce. Id. Supervisor Joyce ordered the plaintiff to back to his dorm immediately. Id. at 5. The plaintiff says that jail officer Billington “was notified” that the plaintiff had fallen into the pit, and went to the dorm to talk with the plaintiff. Billington decided that the plaintiff was hurt badly enough that the medical staff should see him. Billington notified “Nurse Joy, ” who examined the plaintiff. Id. at 3. The nurse ordered an ice pack, and arranged to have x-rays taken of the plaintiff's injured areas. Id. at 4. The plaintiff asserts that a medical report from Aurora showed that he had a rotator cuff injury, and that he needed an ice bag. Id. at 5. He claims, however, that Officer Klowein[2] refused to give him an ice bag when he asked for one. Id. He also says that he “was advised”-he does not say by whom-to wear a sling, but that “back at the jail, he was not permitted one of th[o]se either.” Id.

         On August 3, 2016, the plaintiff was taken to Aurora Medical Center and seen by an orthopedic specialist who gave him a cortisone injection and prescribed physical therapy. Id. at 6. The plaintiff indicates that while at WCJ, he received physical therapy three times, but that it “did not help much, if any.” Id. at 5.

         In August 2016, the plaintiff was transferred to Fox Lake Correctional Institution. Id. at 6. While there, the plaintiff was taken to Waupun Hospital where he had an MRI conducted that revealed his rotator cuff injury. Id. In February 2017, the plaintiff had another, “more intensified” MRI done and was told he would need surgery on his shoulder. Id. The plaintiff's surgery was scheduled for April 2017. Id. In May 2017, another MRI showed “impingement syndrome, ” which the plaintiff indicates can happen as a result of a fall. Id. He received physical therapy for this. Id.

         Because the plaintiff was experiencing tingling in his hand and fingers, at some point he was referred to a neurologist. Id. The neurologist stated the ...

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