United States District Court, E.D. Wisconsin
JOSEPH, UNITED STATES MAGISTRATE JUDGE.
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
of Plaintiff's Amended Complaint
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.
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).
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.
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,
in the Complaint
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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 ...