United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE.
Charles Jolson Dees, who is incarcerated at the Drug Abuse
Correctional Center in Winnebago, Wisconsin, proceeds in this
matter pro se. He filed a complaint alleging that
Defendants violated his constitutional rights. (Docket #1).
This matter comes before the court on Plaintiff's
petition to proceed without prepayment of the filing fee
(in forma pauperis). (Docket #2). Plaintiff has been
assessed and paid an initial partial filing fee of $14.23.
See 28 U.S.C. § 1915(b)(1).
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 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. §
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, 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.
“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, 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 and 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)). However, a complaint that offers mere
“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). 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, courts should
follow the principles set forth 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. If there are well-pleaded factual allegations,
the court must, second, “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. Section 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 is obliged
to give the 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,
alleges that he has a prosthetic leg. (Docket #1 at 3). On
January 20, 2016, Plaintiff was transferred to Dodge
Correctional Institution (“Dodge”). Id.
Once there, Defendant Nurse Hoban (“Hoban”) took
the special shoes that were fitted for the prosthetic.
Id. The shoes were then lost. Id. Plaintiff
states that he has suffered a number of painful medical
problems since the loss of his shoes. Id.
allegations against Hoban implicate his Eighth Amendment
right to a minimal level of healthcare while in custody.
Petties v. Carter, 836 F.3d 722, 727-28
(7th Cir. 2016). The Eighth Amendment is violated when the
prisoner shows that they “suffered from an objectively
serious medical condition, ” and that “the
individual defendant was deliberately indifferent to that
condition.” Id. at 728. The Gayton
case neatly summarizes the claim:
[T]he plaintiff must show that: (1) [he] had an objectively
serious medical condition; (2) the defendants knew of the
condition and were deliberately indifferent to treating
h[im]; and (3) this indifference caused h[im] some injury. An
objectively serious medical condition is one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need
for a doctor's attention. A medical condition need not be
life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the
requisite culpable state of mind. This 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. Evidence that the official acted
negligently is insufficient to prove deliberate indifference.
Rather, deliberate indifference is simply a synonym for
intentional or reckless conduct, and that reckless describes
conduct so dangerous that the deliberate nature of the
defendant's actions can be inferred. Simply put, an
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the
harm ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)
(citations and quotations omitted). In sum, “deliberate
indifference means actual, personal knowledge of a serious
risk, coupled with the lack of any reasonable response to
it.” Ayoubi v. Dart, No. 17-1561, 2018 WL
671152, at *2 (7th Cir. Feb. 2, 2018). Plaintiff's
allegations do not explain, or even allow an inference, that
Hoban deliberately misplaced Plaintiff's shoes knowing
this would cause him severe pain or other medical
complications. Thus, Plaintiff's allegations fail to
state a valid claim against Hoban.
the other defendants, they are not mentioned at all.
Plaintiff indicates that some are from Dodge, but others are
employed at Racine Correctional Institution. See
(Docket #1 at 2). Without any allegations of what each
defendant did, and how their actions violated Plaintiff's
constitutional rights, he may not proceed against them.
Court will allow Plaintiff an opportunity to amend his
complaint to correct these deficiencies. If he chooses to
offer an amended complaint, Plaintiff must do so no later
than March 26, 2018. If he does not do so,
this action will be dismissed. Plaintiff should be aware that
an amended complaint supersedes the prior complaint and must
be complete in itself without reference to the original
complaint. See Duda v. Bd. of Educ. of Franklin Park Pub.
Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that
in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
see also Pintado v. Miami-Dade Housing Agency, 501
F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's ...