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Jackson v. Kuepper

United States District Court, E.D. Wisconsin

March 13, 2018

LONNIE L. JACKSON, Plaintiff,
v.
CO II OFFICER KUEPPER, et al., Defendants.

          DECISION AND ORDER

          LYNN ADELMAN District Judge

         Plaintiff Lonnie L. Jackson is a pro se transgender Wisconsin state prisoner who identifies as female. She filed this action under 42 U.S.C. § 1983 alleging that defendants violated her constitutional rights. (Docket No. 1.) Plaintiff has moved for leave to proceed without prepayment of the filing fee (in forma pauperis) (Docket No. 2), to appoint counsel (Docket No. 4), and to allow the use of her release account for copies, postage, and other litigation expenses for this lawsuit (Docket No. 9). This order screens plaintiff's complaint and resolves her motions.

         I. Motion for Leave to Proceed Without Prepayment of the Filing Fee

          The Prison Litigation Reform Act (PLRA) applies to this case because plaintiff was incarcerated when she filed her complaint. 28 U.S.C. § 1915. The PLRA allows a court to give an incarcerated plaintiff the ability to proceed with her lawsuit without prepaying the case filing fee, as long as she meets certain conditions. One of those conditions is that plaintiff pay an initial partial filing fee. 28 U.S.C. § 1915(b).

         Plaintiff has been assessed and paid an initial partial filing fee of $.97. See 28 U.S.C. § 1915(b)(1). Therefore, I will grant her motion to proceed without prepayment of the filing fee.

         II. Screening Plaintiff's Complaint

         I am required 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). I 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. § 1915A(b).

         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 [she] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for plaintiff to plead specific facts and her 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). 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 [] plaintiff pleads factual content that allows the court to draw the reasonable inference that [] 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, I 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.

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) she was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was by defendants 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). I am obliged to give 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)).

         A. Complaint's Allegations[1]

         At all times relevant to this complaint, plaintiff was an inmate at Oshkosh Correctional Institution (OCI). Defendants Range Correctional Officer II Officer Kuepper, Sergeant Keller, Lieutenant Norman, Center Director Chris Kunchinski, [2] Deputy Warden Robert Hable, Warden Judy Smith, Captain Haas Kuster, [3] Correctional Officer III Sergeant West, and Inmate Complaint Examiner Teresa Murphy were employed at OCI. Defendants Secretary Jon Litscher, Former Secretary Edward Wall, and Deputy Secretary Cathy Jess were employed at the Department of Corrections (DOC). Defendant Administrator James R. Schwochert was employed at the DOC's Division of Adult Institutions (DAI).

         1. Industrialized Hand Soap in Plaintiff's Medical Ice Bag

         Plaintiff alleges the following facts. On April 25, 2017, plaintiff asked defendant Kuepper to fill her medical ice bag with ice in accordance with her medical restriction. At the time, OCI used dark blue bags for their medical bags. Docket No. 1 ¶ 12. Defendant Kuepper took the bag and returned it to plaintiff half full of ice. Plaintiff placed the bag on her back and went to sleep.

         By about 3:00 a.m., the ice in the bag had melted, and plaintiff was awakened by its leaking contents. She removed the bag from her bed. And because she was thirsty, she drank some of its contents and then went back to sleep.

         Moments later, plaintiff began feeling pains in her stomach, lightheaded, dizzy, and “quizzy.” Docket No. 1 ¶ 4. She vomited twice. After which she noticed “a great deal of ‘bubbles' in the toilet water.” Id. She reviewed the medical ice bag contents and surmised that the bag contained “industrial hand sanitizing hand soap” (soap), a product used throughout the institution for cleaning. Id.

         Plaintiff spoke with a third shift range officer about what had happened and asked him if the use of soap in medical ice bags was a practice. Docket No. 1 ¶ 5. The range officer said that it was common practice to use salt and pepper in medical ice bags to prevent abuse but not soap or any other products. The range officer also stated that the officer is supposed to inform the inmate of any additives he may have put in the bag prior to giving it to the inmate.

         Plaintiff knew that using the medical ice bag for purposes other than prescribed is a prison violation that could result in the cessation of her use. She, however, did not know that drinking the melted ice-thus after having used the medical ice bag for its intended purpose-was a purported violation as well. According to plaintiff, nothing in the DOC policies or the Bureau of Health Services Operational Manual makes this kind of restriction known to an inmate who is issued a medical ice bag.

         After the range officer left plaintiff's cell, plaintiff vomited once more and then informed the housing sergeant of what had happened and how she was not told that soap had been put into her medical ice bag. Plaintiff asked the sergeant to inform the health services unit (HSU) right away. He did, and he also wrote an incident report for the matter but did not identify the range officer with whom plaintiff initially spoke.

         At about 6:30 a.m., plaintiff was evaluated by medical staff, including Registered Nurse Cory (not a defendant). Cory explained to plaintiff that he had contacted poison control regarding plaintiff's ingestion of the soap and was told that plaintiff would simply have to let the soap pass through her system. There was nothing else that could be done. Cory told plaintiff that she would be sick for three to seven days but that she was to let the HSU know if her symptoms worsened or if she became very ill so that they could provide further treatment.

         At the time, plaintiff was taking “feminizing hormones, ” “psychotropic medication, ” high blood pressure medication, diabetic medication, and pain medication, and so she asked Cory about the effects the soap ingestion would have. Docket No. 1 ¶ 32. Cory stated he would monitor plaintiff's progress. Plaintiff was returned to her cell.

         Later that day, defendant Kuepper came to plaintiff's cell smiling and laughing. He asked plaintiff whether she drank from the medical bag. When plaintiff responded yes, defendant Kuepper admitted to putting the soap in plaintiff's medical bag. After plaintiff told defendant Kuepper that she had gotten very sick from it, defendant Kuepper responded “oh well, you should not have drunk the water from the medical bag.” Docket No. 1 ¶ 10. Plaintiff asked defendant Kuepper why he did not tell her about the soap. Defendant Kuepper responded that he did not have to tell plaintiff anything and that he is allowed to put whatever he wants in the medical ice bags to prevent abuse of the privilege. Plaintiff asserted that under the DOC policy and Wisconsin law she had a right to know what was in the medical bag. Defendant Kuepper again stated that he did not have to tell her anything and that plaintiff would find out when she drank it. He also stated that if he really wanted to poison plaintiff, “[he] would have used ‘rat poison.'” Id. Defendant Kuepper further asserted that it was just soap and that plaintiff was making a big deal out of it.

         Plaintiff notes that at no time did defendant Kuepper tell his supervisors that he witnessed plaintiff abusing her medical ice bag privilege and no other staff had informed defendant Kuepper that plaintiff had been caught abusing her medical ice bag privilege. Plaintiff states that defendant Kuepper caused her injury and suffering because she is African American and transgender. She asserts that defendant Kuepper made it known that he dislikes African Americans and transgender people. He sees African Americans as "drug dealers poisoning his community, ” and he dislikes transgender people because they want to be the opposite sex but are not. Docket No. 1 ¶ 33.

         Plaintiff subsequently wrote a formal complaint to defendant Smith seeking to file criminal charges against defendant Kuepper regarding the incident. She also filed an inmate complaint.

         Plaintiff received a memorandum from defendant Smith about the formal complaint. It told plaintiff that the warden's “office will take no further action on the issue because [] plaintiff filed an inmate complaint, citing that it would be inappropriate for her to discuss the matter outside of the ICRS system.” Docket No. 1 ¶ 13.

         After her inmate complaint investigation got underway, defendant Murphy informed plaintiff that her complaint would “probably be dismissed pursuant to DOC Executive Directive 16 ‘Confidentiality Reasons.'” Docket No. 1 ¶ 12. The complaint was dismissed due to “confidentiality policy protecting DOC staff.” Id.

         The blue medical ice bags were subsequently changed to clear. Also, defendant Kuepper left the institution for a sergeant position at another unknown institution.

         In May 2015, plaintiff filed a formal complaint with defendant Wall requesting a full investigation regarding “plaintiff's poisoning.” Docket No. 1 ...


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