United States District Court, E.D. Wisconsin
DOMINIQUE D. GULLEY-FERNANDEZ, Plaintiff,
DR. STACEY HOEM, Defendant.
ADELMAN, United States District Judge
is a Wisconsin state prisoner proceeding pro se. On
January 12, 2018, I screened plaintiffs amended complaint and
directed plaintiff to file a second amended complaint
containing only properly related claims if he wants to
proceed. This matter is before me to screen plaintiffs second
court must 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 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. 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, 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 Atlantic 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).
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 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 “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. Village of North 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, 106 (1976)).
to the second amended complaint, plaintiff is a
“bisexual transsexual/gender woman” who has been
incarcerated at the Wisconsin Secure Program Facility since
2011. Plaintiff alleges that he has had many problems with
defendant Dr. Stacey Hoem since March 2013 and that Hoem has
sexually harassed and discriminated against him.
March 7, 2013, defendant Hoem allegedly called plaintiff a
“faggot” because “plaintiff told Alpha Unit
Staff (RHS) that he's trying to get an ‘SPN'
(Special/Separation Placement Notice) against Dr. Hoem due to
her discriminatory comments and her refusal to stop accusing
plaintiff of malingering and exaggerating his mental health
diagnosis.” ECF No. 16, at 2-3. On the same date,
defendant Hoem allegedly retaliated against plaintiff by
removing him from the New Freedom program because plaintiff
filed a request for separation from Hoem and filed grievances
against her for mistreatment, neglect, inadequate mental
health treatment or care, and psychological indifference.
11, 2013, defendant Hoem allegedly accused plaintiff of
manipulating staff, malingering his diagnoses, and lying
about his mental health needs. Plaintiff also alleges that
Hoem called him a “dumb schmuck . . . and a dumb ass
faggot.” Id. at 3. Plaintiff alleges that on
July 14, 16, and 17, 2013, defendant Hoem called him a
“lying manipulative faggot.” Id.
Plaintiff alleges that on November 25, 2016, while talking to
plaintiff at his cell front, defendant Hoem became hostile
and unprofessional toward plaintiff and called him a
“wannabe transgender.” Id. at 4.
Plaintiff walked from the cell door and ended the
Id. On December 16, 2016, plaintiff allegedly tried
to speak with defendant Hoem, but Hoem told plaintiff that
she “don't have time to talk to a needy
homosexual.” Id. Plaintiff alleges that on
January 4, 2017, Hoem called him a “faggot.”
Id. On March 18, 2017, Dr. Hoem allegedly told
plaintiff to “stop his feminine tendencies . . .
because he's not a female/woman.” Id.
Plaintiff alleges that in May 2017, defendant Hoem retaliated
against plaintiff by writing him a conduct report for
threats/disrespect because plaintiff told Hoem that if she
continued to slander his name and lie about him malingering
his mental health diagnosis he would add her back to his
claims that defendant Hoem's “continued on-going
psychological welfare, cruel and unusual punishment,
psychological torture, discrimination, retaliation, sexual
harassment, and inadequate/unprofessional mental health
treatment is causing the plaintiff extreme mental anguish and
psychological/personal injury to his mind and mental health
as well as emotional distress, pain and suffering[.]”
Id. at 5. Plaintiff seeks monetary damages against
states plausible claims against defendant Hoem for harassment
and retaliation. See Beal v. Foster, 803 F.3d 356,
358-59 (7th Cir. 2015); Perez v. Fenoglio, 792 F.3d
768, 783 (7th Cir. 2015).
IT IS ORDERED that the second amended complaint is