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Rivers v. Doe

United States District Court, E.D. Wisconsin

June 14, 2018

DESHIREO TYVEONCE RIVERS, Plaintiff,
v.
JOHN DOE, Defendant.

          DECISION AND ORDER SCREENING PLAINTIFF'S AMENDED COMPLAINT (DKT. NO. 12), DENYING AS MOOT PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 14), AND DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 13)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         The plaintiff filed a complaint under §1983, alleging that various entities had violated his constitutional rights. Dkt. No. 1. The court screened the complaint, and concluded that the plaintiff had not stated a claim against the named defendants, and had included unrelated claims in a single complaint. Dkt. No. 10. The court gave the plaintiff the opportunity to file an amended complaint, id., and the court received his amended complaint on September 15, 2017. Dkt. No. 12. The plaintiff also filed a second motion to proceed without prepayment of the filing fee, which the court will deny as moot because it has already granted that relief.[1] Dkt. No. 8. Finally, the plaintiff filed a motion to appoint counsel. Dkt. No. 13. In this order, the court screens the plaintiff's amended complaint and resolves his motion to appoint counsel.

         I. Screening the Plaintiff's Amended Complaint

         The law requires the court 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). The court must dismiss a complaint if the plaintiff raises 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 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).

         To proceed on a claim that his constitutional rights were violated 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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives 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)).

         A. The Plaintiff's Allegations

         The plaintiff alleges that on November 27, 2016, while he was incarcerated at the Milwaukee County Jail, he submitted a dental request about his toothaches. Dkt. No. 12 at 2. He states that did not get an appointment with the dentist, so about five days later, he submitted another dental request. Id. The plaintiff alleges that he still wasn't seen by the dentist, so he submitted two more dental requests over the next week. Id. The plaintiff explains that the dentist (whose name he does not know, so he identifies him as “John Doe”) finally examined him about two weeks after his original request. Id. at 3.

         At the examination, the plaintiff states that John Doe told him he had two infected teeth that needed to be extracted. Id. John Doe scheduled an extraction date about ten days out, but the plaintiff states that John Doe did not extract the tooth until more than a week after the scheduled extraction date. Id. The plaintiff states that he was in a lot of pain prior to John Doe extracting the teeth, pain that affected his ability to sleep. Id. He explains that he only sometimes received ibuprofen; other times he simply had to endure the pain. Id. A few days before John Doe extracted the teeth, the pain was allegedly so severe that the plaintiff pushed the emergency call button in his cell. Id.

         The plaintiff explains that about three days after John Doe extracted two teeth, he learned that John Doe allegedly pulled the wrong tooth. Id. At a December 12, 2016 appointment, the plaintiff says, John Doe told him that his lower left rear wisdom tooth and his upper left second tooth from the rear were infected. Id. He learned after the extraction, however, that John Doe had pulled the top left rear wisdom tooth, rather than the bottom one. Id. He says he also noticed tooth fragments in his mouth. Id.

         B. The Court's Analysis

         "Prison officials violate the Eighth Amendment's proscription against cruel and unusual punishment when their conduct demonstrates 'deliberate indifference to serious medical needs of prisoners.'" Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). This standard contains both an objective element (that the medical needs be sufficiently serious) and a subjective element (that the officials act with a sufficiently culpable state of mind). Id. The court will allow the plaintiff to proceed on a deliberate indifference claim against John Doe, the dentist at the Milwaukee County Jail, based on his allegations that John Doe initially delayed treating the plaintiff's toothaches, that he failed to provide the plaintiff with pain relief during the delay, and that he ultimately extracted the wrong tooth.

         Because the plaintiff does not know the real name of the defendant, the court will allow this case to proceed to discovery against Acting Milwaukee County Sheriff Richard Schmidt. The court is not requiring Acting Sheriff Schmidt to respond to the plaintiff's complaint; however, the court expects him to assist the plaintiff in identifying the real name of John Doe. See Donald v. Cook County Sheriff's Dept., 95 F.3d 548m 555 (7th Cir. 1996) (encouraging district courts to assist pro se plaintiffs with identifying John Doe defendants). The plaintiff may send written questions to Acting Sheriff Schmidt[2] limited to the topic of identifying John Doe's real name. Once the plaintiff knows John Doe's real name, he should file a motion asking the court to substitute the real name for the John Doe placeholder.

         II. The Plaintiff's Motion to Appoint ...


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