United States District Court, E.D. Wisconsin
LONNIE L. JACKSON, Plaintiff,
CO II OFFICER KUEPPER, et al., Defendants.
DECISION AND ORDER
ADELMAN District Judge
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.
Motion for Leave to Proceed Without Prepayment of the Filing
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. §
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
Screening Plaintiff's Complaint
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).
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).
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.
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)).
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,
Deputy Warden Robert Hable, Warden Judy Smith, Captain Haas
Kuster,  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).
Industrialized Hand Soap in Plaintiff's Medical Ice
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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.”
blue medical ice bags were subsequently changed to clear.
Also, defendant Kuepper left the institution for a sergeant
position at another unknown institution.
2015, plaintiff filed a formal complaint with defendant Wall
requesting a full investigation regarding
“plaintiff's poisoning.” Docket No. 1 ...