United States District Court, E.D. Wisconsin
AND ORDER SCREENING THE PLAINTIFF'S AMENDED COMPLAINT
(DKT. NO. 15), DISMISSING CERTAIN DEFENDANTS, DENYING THE
PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER
(DKT. NO. 28), DENYING THE PLAINTIFF'S MOTION TO COMPEL
AND MOTION FOR SANCTIONS (DKT. NO. 28), DENYING THE
PLAINTIFF'S MOTION TO ORDER THE DEFENDANTS TO ALLOW HIM
ACCESS TO THE LAW LIBRARY (DKT. NO. 29), AND DENYING WITHOUT
PREJUDICE THE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
case currently is assigned to Magistrate Judge David E.
Jones. Although the plaintiff has consented to Judge Jones
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.
SCREENING OF THE PLAINTIFF'S AMENDED COMPLAINT
Standard for Screening Complaints
Prison Litigation Reform Act (“PLRA”) applies to
this case because the plaintiff was incarcerated when he
filed the complaint. 28 U.S.C. §1915. The PLRA requires
federal courts 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 may dismiss a case, or part of it, if the claims
alleged are “frivolous or malicious, ” fail to
state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. §1915(e)(2)(B).
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “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)).
“Labels and conclusions” 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).
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis in Twombly to
determine whether a complaint states a claim. Id. at
679. First, the court determines whether the plaintiff's
legal conclusions are supported by factual allegations.
Id. Legal conclusions not supported by facts
“are not entitled to the assumption of truth.”
Id. Second, the court determines whether the
well-pleaded factual allegations “plausibly give rise
to an entitlement to relief.” Id. The court
gives 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)).
Facts Alleged in the Amended Complaint
plaintiff has sued the following defendants: Captain Wearin,
Dr. Butler, Nurse Erin (or Airin), Nurse Sarah Simon, Unknown
Intake Sergeant, Intake Holding Officer John Doe, CO John Doe
#1, CO John Doe #2, Advanced Correctional Services, Racine
County Jail, Racine County Sheriff's Department and
Sheriff Schmaling. Dkt. No. 15 at 1.
April 1, 2016, the plaintiff arrived at the Racine County
Jail, and during the medical screening, informed the booking
officer that he had seizures. Id. at ¶¶
month later, on April 27, 2016, the plaintiff had a seizure
while in his cell. Id. at ¶18. “John Doe
Correctional Officer” (not a defendant) contacted
medical staff, and Nurse Ammon (not a defendant) went to the
plaintiff's cell. Id. The plaintiff was
“conscious but unresponsive, shaking and diaphonetic
pupils constricted and unable to squeeze [Ammon's]
hands.” Id. Several unidentified correctional
officers (also not defendants) told the plaintiff later that
correctional officers moved him out of the cell “by his
arms and legs while his head hanged backwards as he foamed at
the mouth and was unresponsive.” Id. at
¶19. He was taken through to intake, through the sally
port, onto a stretcher, into an ambulance and to the
hospital. Id. at ¶20. At about 2:30 a.m. the
next day, the plaintiff was discharged from Wheaton
Franciscan Hospital with orders to follow up two days later
with neurologist Janel Schneider (not a defendant), and with
a prescription for 100mg of Dilanton. Id. at
the plaintiff got back to the jail that morning, “Nurse
Jane Doe” (not a defendant) took his vitals.
Id. at ¶22. The plaintiff asked for his seizure
medication, but the nurse told him that she could not give
him the medication without a doctor's order. Id.
She said this even though she had the discharge papers from
Dr. Schneider. Id. The plaintiff was placed in
intake because of the seizures. Id.
around noon that day, Nurse Erin and Nurse Sarah Simon were
called to intake because the plaintiff was unresponsive.
Id. at ¶23. Once the plaintiff “became
responsive, ” he observed Nurse Erin blocking his
breathing “by sticking two ammonia tabs up both his
nostrils with latex gloved hands covering his mouth and nose,
pushing down with tremendous force.” Id. This
made his ability to breathe “unbearable.”
Id. “This comes after [the plaintiff] had
seizures the whole morning and fought for his life to stay
conscious and alive with no strength to call for help or to
press the emergency button . . . .” Id. The
plaintiff alleges that “Unknown Intake Sergeant,
” “John Doe Intake Holding Officer, ”
“John Doe CO #1, ” and “John Doe CO
#2” allowed him to “seize” all morning, and
that neither Nurse Sarah nor the COs stopped Nurse Erin from
blocking the plaintiff's breathing. Id. at
following day, on April 29, 2017, the plaintiff wrote an
inmate grievance regarding the incident to the “Jail
Sergeant” (not a defendant) and Captain Wearing.
Id. at ¶25. Captain Wearing responded on May 6,
2016, “but never stated if anything, on how he was
going to handle this situation or if he was going to
investigate why [the plaintiff] was not properly checked
on.” Id. The jail sergeant never responded.
plaintiff says that he did not get his prescribed Dilantin
until defendant Dr. Butler gave it to him two weeks later,
id. at ¶26, and he alleges that Dr. Butler
“bumped” the medication from the 100 mg
prescribed at Wheaton Franciscan to 200 mg, dkt. no. 15-2 at
1. The plaintiff asserts that this caused him mental,
physical and emotional anguish. Id.
plaintiff seeks compensatory and punitive damages and asks
the court to order the defendants to do various things.
Id. at 4-5.
Legal Analysis of Alleged Facts
state a claim for relief under §1983, the 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 the color of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Village of North Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)). Liability under §1983 is
predicated on a defendant's personal involvement in the
constitutional deprivation. Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). “An official satisfies
the personal responsibility requirement of section 1983 . . .
if the conduct causing the constitutional deprivation occurs
at [his] direction or with [his] knowledge and
consent.” Id. (quoting Crowder v.
Lash, 687 F.2d 996, 1005 (7th Cir. 1982). He “must
know about the conduct and facilitate it, approve it, condone
it, or turn a blind eye.” Id. (quoting
Jones v. City of Chicago, 856 F.2d 985, 992 (7th
Racine County Jail and Racine County Sheriff's
court will not allow the plaintiff to proceed with any claims
against the Racine County Jail or the ...