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Jackson v. Kuepper

United States District Court, E.D. Wisconsin

June 1, 2018

LONNIE L. JACKSON, Plaintiff,
v.
CO II OFFICER KUEPPER, Defendant.

          ORDER

          LYNN ADELMAN District Judge

         Plaintiff Lonnie L. Jackson, a pro se transgender Wisconsin state prisoner who identifies as female, filed a complaint under 42 U.S.C. § 1983 alleging that several defendants violated her constitutional rights. Docket No. 1. I screened her complaint and allowed her to file an amended complaint that complied with Federal Rules of Civil Procedure 18(a) and 20. Plaintiff has filed an amended complaint. Docket No. 12-1. She has also filed a motion asking me to reconsider my denial of her motion to use $100 of her release account to pay for her litigation. Docket No. 11. This order screens plaintiff's amended complaint and resolves her motion.

         I. SCREENING AMENDED COMPLAINT

         I am required to screen complaints, including amended 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. ALLEGATIONS

         At all times relevant to this complaint, plaintiff was an inmate at Oshkosh Correctional Institution (OCI) and defendants were employed by the Wisconsin Department of Corrections (WDOC).

         Plaintiff alleges the following facts. On the evening of April 25, 2015, while she was being housed in the segregation unit, she asked defendant Kuepper to fill her medical ice bag-which was dark blue at the time-with ice, in accordance with her medical restriction. Defendant Kuepper took the bag and returned it to plaintiff half full of ice. Plaintiff wrapped the bag in a blue towel, placed it in her bed against her back, and went to sleep.

         At some point, the ice in the bag had melted, and plaintiff was awakened by its leaking contents. She removed the bag from her bed. She later poured some of its contents into her red segregation cup, drank it, and then went back to sleep.

         At some time between 3:05 a.m. and 3:20 a.m., plaintiff began feeling pains in her stomach, lightheaded, dizzy, and “quizzy.” Docket No. 12-1 ¶ 22. She vomited twice. She then noticed “a great deal of ‘Bubbles' in the toilet water.” Id. She reviewed the medical ice bag contents, tasted what she had poured into her cup from the bag, and surmised that the bag contained “industrial hand sanitizing hand 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. 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.

         After the range officer left plaintiff's cell, plaintiff vomited once more and then informed the housing sergeant of what had happened. Plaintiff asked the sergeant to inform the health services unit (HSU) right away. He did, and he also wrote an incident report.

         At about 6:30 a.m., Nurse Cory (not a defendant) took plaintiff to the treatment exam room and evaluated her. 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 “feel nauseated for some time, and [may] get a runny-stool while it pass[es] through” but that she was to let the HSU know if her symptoms worsened. Id. ¶ 24. At the time, plaintiff was taking “female hormones, ” “psychotropic medication, ” high blood pressure medication, diabetic medication, and pain medication, and so she asked Cory about the effects that the soap ingestion would have. Id. ¶ 25. Cory stated he would monitor plaintiff's progress. Plaintiff states she suffered symptoms of an “upset stomach, lightheadingness [sic], dizzy and quizzy [sic]” that lasted a week. Id.

         At some point after being examined by Cory, plaintiff spoke with another correctional officer regarding the incident. She learned that “there is no standard of practice for any officer to use any kind of soap in ice bags, because of its danger to the inmate.” Id. ¶ 27.

         A short time later, 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 that he put the soap in plaintiff's medical bag. 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 anything [he] want[s] into those ice bags in order to prevent abuse of the privilege.” Id. ¶ 28. Plaintiff asserted that she had a right to know what was in the medical bag and that Kuepper had “violated WDOC policies, and the Criminal Code of Wisconsin Laws related to ‘intentionally poisoning inmates.'” Id. 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'” and that “he does this to all of the inmates when he works segregation, and as a correctional officer, he is authorized to put [whatever] he chooses into medical ice bags, in order to teach the inmates a lesson when they abuse the medical ice bag privilege.” Id. Defendant Kuepper also asserted that it was just soap and that plaintiff was making a big deal out of it. He then walked away.

         Plaintiff subsequently wrote a formal complaint to defendant Warden Judy Smith asking for a full investigation regarding the incident. The complaint was denied. She also filed an inmate complaint and was interviewed by Teresa Murphy. Defendant Murphy informed plaintiff that her complaint “will be dismissed pursuant to DOC Executive Directive #16, for ‘Confidentiality Reasons.'” Id. ¶ 29. The blue medical ice bags were later changed to clear, and defendant Kuepper left OCI for Waupun Correctional Institution.

         In May 2015, plaintiff filed a formal complaint with defendant Edward Wall requesting a full investigation regarding her soap-ingestion incident. Defendant Wall did not respond.

         In June 2015, plaintiff wrote a letter to defendant Cathy Jess explaining the incident and requesting to press charges against defendant Kuepper for assault. Plaintiff asserts that “defendant ...


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