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Daniels v. Deblanc

United States District Court, E.D. Wisconsin

April 4, 2018

REMO HARRISON DANIELS, Plaintiff,
v.
DR. DEBLANC, et al., Defendants.

          SCREENING ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Remo Daniels, a Wisconsin state prisoner who is representing himself, filed a civil rights complaint under 42 U.S.C. § 1983. I issued an amended report and recommendation, screening Daniels' amended complaint, on November 15, 2017. (Docket # 42.) The case was then transferred to the Honorable Pamela Pepper to rule on the report and recommendation. In the interim, the Wisconsin Department of Justice and this court entered into a Memorandum of Understanding that gives limited consent to magistrate judges to screen prisoner complaints. I therefore have jurisdiction for purposes of screening the complaint. Daniels has filed another amended complaint, but it is identical to his first amended complaint. I therefore withdraw the report and recommendation and will issue an order screening his amended complaint. Daniels may proceed on his Eighth Amendment claims for failure to prevent harm and deliberate indifference against all defendants but may not proceed on his harassment, retaliation, and misconduct claims. I will also address the motions currently pending and order the defendants to respond to Daniels' motion for a preliminary injunction and protective order.

         Screening of Plaintiff's Amended Complaint

         Federal law requires that I 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). Upon reading Daniels' second amended complaint, I immediately noticed two issues: the first is that he incorporates a previous complaint by reference, which he may not do.

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 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).

         In 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.

         To proceed 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 defendant was 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 will give a pro se plaintiff's 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)).

         Allegations in the Complaint

         According to the complaint, Daniels had a Behavior Management Plan in place because of certain mental health issues, including engaging in self-harm. (Am. Compl. at 1.) On February 17, 2017, Daniels was placed on observation status around 12:00 p.m. (Id.) Around 3:00 p.m., Officers Geschke and Johnson gave him a hard meal tray and left his food trap open, despite knowing that while on observation status, Daniels was to receive an observation status meal tray and his food trap was to stay closed. (Id.) Daniels alleges that he attempted to return the tray many times. (Id. at 1-2.)

         Around 3:50 p.m., Sgt. Tritt walked up and asked Daniels why his food trap was open. (Id. at 2.) Daniels told her that the officers gave him a hard tray. (Id.) Despite this knowledge, Sgt. Tritt walked off. (Id.) Daniels alleges that around 4:01 p.m. he began beating his hand with the tray Officers Geschke and Johnson had given him. (Id.) Officer Pach walked up and asked Daniels to give him the tray. (Id.) Daniels alleges that he told Officer Pach how he had received the tray and Officer Pach responded that he did not care and walked off. (Id.) Daniels continued to engage in self-harming behavior with the tray. (Id.)

         Around 4:10 p.m., Sgt. Bouzak arrived and told Daniels to give him the tray Daniels was harming himself with. (Id.) Daniels told Sgt. Bouzak what had happened and Sgt. Bouzak said he did not care. (Id.) Daniels gave Sgt. Bouzak the tray; however, Sgt. Bouzak denied Daniels medical care. (Id.) Around 4:40 p.m., Daniels began cutting himself because he was angry and because he was denied medical treatment for his hand. (Id.)

         Around 5 p.m., Daniels alleges that he saw a nurse in health services for the selfharm. (Id.) While at health services, Daniels spoke to Lt. Kuepper, who asked Daniels whether he was going to continue engaging in self-harm, to which Daniels responded affirmatively. (Id.) Lt. Kuepper called Dr. Deblanc, who told Lt. Kuepper to put Daniels back in his cell, despite knowing that Daniels was not going to cease engaging in self-harm. (Id.) Daniels alleges that he told Lt. Kuepper that he was going to continue harming himself, to which Lt. Kuepper responded that he did not care. (Id.) Daniels alleges that Lt. Kuepper's lack of concern was retaliatory. (Id.)

         Daniels alleges that pursuant to his behavior management plan, he was supposed to be placed in full bed restraints due to his tendency to engage in self-harm and all of the defendants knew about this plan and did not care. (Id.) On February 18, 2017 at 12 a.m., Daniels cut himself and there was a lot of blood. (Id. at 2-3.) Officer Peter joked about Daniels cutting himself and asked what was she supposed to do? (Id. at 3.) Officer Peter stated that if she called for help it would wake up the other inmates. (Id.) Daniels told her to put him in full bed restraints, which she did not do. (Id.)

         After a while, Officer Peter got Sgt. Keller to come to Daniels' cell and Sgt. Keller stated that there was no nurse in that day and there was nothing he could do at that time. (Id.) Daniels continued to engage in self-harm. (Id.) Around 1 a.m., an officer told Sgt. Keller that Daniels was engaging in self-harm and Daniels was pulled out of the observation cell and placed in a cage. (Id.) Daniels was told that a supervisor would be there at 2 a.m. (Id.) Around 2 a.m., Capt. Olson and Lt. Nelson arrived and denied Daniels medical care. (Id.) Capt. Olson called Dr. Deblanc, who told Capt. Olson to put Daniels back in his cell. (Id.) Daniels again asked to be put into full bed restraints to protect him from self-harm, but Lt. Nelson refused. (Id.)

         Around 2:05 a.m., a white inmate began harming himself by hitting his head against a door. (Id.) Capt. Olson called Dr. Deblanc and Daniels overheard them say they were going to put this inmate into full bed restraints to protect him from harm. (Id.) Daniels alleges that he was treated differently from this white inmate because Daniels is black. (Id.) Around 2:20 a.m. a nurse arrived to clean Daniels' cuts and she asked when he cut himself. (Id.) Daniels responded that the cuts occurred around 12:00 p.m. (Id.) The nurse asked the officers why she was not contacted sooner. (Id.) Daniels alleges the officers did not contact the nurse sooner because they did not care. (Id.)

         Daniels alleges that on July 27, 2017, around 10:00 a.m., Sgt. Voigt (a defendant in Daniels' lawsuit No. 17-CV-680) ordered Officer Hess to take Daniels' papers and legal work and books. (Id. at 4.) Daniels alleges that he was mad and pushed his intercom and stated that he was going to do self-harm and began cutting himself with a pen. (Id.) Officer Hess told him to stop and Sgt. Voigt came to Daniels' door with a team. (Id.) Daniels was taken out of his cell. (Id.) At 10:30 a.m., Lt. Nelson and Sgt. Voigt denied Daniels medical care and placed him in observation around 11:10 a.m. (Id.) Daniels started doing self-harm again. (Id.) Officer Demer said to let Daniels cut himself. (Id.)

         Around 12:15 p.m., Daniels was able to see Nurse Larson. (Id.) Daniels alleges that Lt. Nelson was supposed to place him in full bed restrains pursuant to his behavior management plan, but failed to do so. (Id.) Daniels alleges that he told Dr. Van Buren to place him in full bed restrains, but she refused. (Id.) Daniels alleges that Lt. Nelson wrote an incident report stating that he received a call that Daniels had cut himself and that Lt. Nelson contacted H.S.U. staff and a nurse arrived and treated Daniels' cuts. (Id.) The report stated that Daniels was placed in clinical ...


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