United States District Court, E.D. Wisconsin
WILLIAM C. SWAN, Plaintiff,
SERGEANT STACEY BUTKE, CORRECTIONAL OFFICER KLOWEIN, CORRECTIONAL OFFICER BILLINGTON, ARAMARK FOOD SERVICE OFFICIAL DEBBIE, and ARAMARK FOOD SERVICE OFFICIAL JOYCE, Defendants.
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2), DENYING AS MOOT THE PLAINTIFF'S SECOND
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 3) AND SCREENING THE PLAINTIFF'S COMPLAINT
(DKT. NO. 1)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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.
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.
Motion to Proceed without Prepayment of the Filing
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.
Screening of the Complaint
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.
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)
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).
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.
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)).
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.
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, 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.
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 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.
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.
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.
the plaintiff was experiencing tingling in his hand and
fingers, at some point he was referred to a neurologist.
Id. The neurologist stated the ...