United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE
who is incarcerated at Waupun Correctional Institution, filed
a pro se complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. (Docket #1).
Plaintiff then filed an amended complaint, which differs from
the original complaint only in that it is typed, as opposed
to handwritten, and supplies additional minor factual
details. (Docket #4). The amended complaint supersedes the
original complaint and is the governing pleading in this
case. See Massey v. Helman, 196 F.3d 727, 735 (7th
Cir. 1999). Plaintiff has paid the filing fee in full.
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court 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. Id. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff to plead specific facts and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)); see Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“labels and conclusions” or “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 allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
(citation omitted); Christopher, 384 F.3d at 881.
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.
state a claim for relief 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 deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. County 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 is obliged
to give the 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,
alleges that on August 25, 2017, he ingested a “pen
tip.” (Docket #4 at 2). He was taken to Waupun Memorial
Hospital to receive treatment and was then returned to the
prison where he was placed on a “dry cell”
restriction, meaning all water to his cell was turned off.
Id. Jennifer Kacyon (“Kacyon”), a nurse,
gave the directive to Thomas Nelson (“Nelson”), a
lieutenant, to place Plaintiff on dry cell.
Id. Nelson then informed Brian Foster
(“Foster”), the warden, and the officer in the
control bubble, who is not named, that all of Plaintiff's
water was to be kept off. Id.
about 5 p.m. that evening, Plaintiff activated his emergency
call button and told defendant John Doe (“Doe”)
that he wanted water to drink. Id. Doe responded
that Nelson had instructed him not to turn on Plaintiff's
drinking water or flush Plaintiff's toilet because
Plaintiff was on a medical dry cell restriction. Id.
Plaintiff threated to smash his head against the wall if he
did not receive drinking water. Id. at 3. Doe
refused to turn Plaintiff's water on. Id.
hour later, Plaintiff told Michael Clark
(“Clark”), a correctional officer, that he wanted
water to drink. Id. Clark told Plaintiff he could
not give him water because Kacyon and a supervisor had
instructed him not to do so. Id. Plaintiff warned
Clark that he would smash his head against the wall if he did
not receive water or speak to a supervisor. Id. When
he didn't receive any water, Plaintiff made good on that
threat by smashing his own head open. Id. at 3-4.
about 6:35 p.m., Captain Theander retrieved Plaintiff from
his cell and took him to get medical care for his head wound.
Id. at 4. Plaintiff was treated by Kacyon.
Id. Plaintiff told Kacyon that he did not believe
the Health Services Unit (“HSU”) could order that
his drinking water be turned off. Id. Kacyon
responded by stating that a medical order was in place
requiring that Plaintiff's water be shut off.
Id. Plaintiff alleges no such order was in place.
then told his advanced care provider, Nathan Tapio
(“Tapio”), that Kacyon had his drinking water
turned off. Id. Tapio told Plaintiff it was wrong
for Kacyon to do that because failing to drink water would
cause constipation that could prevent the pen tip from
then told Theander and Kacyon that it was against the law to
turn an inmate's water off to prevent him from drinking.
Id. Theander told Plaintiff there was nothing he
could do because Kacyon told him there was a medical order in
place stating Plaintiff could not drink water. Id.
then sent Plaintiff to the hospital for treatment of his head
wound, though once he arrived there, a doctor determined his
wound could not be sutured. Id. at 4-5. Plaintiff
was returned to the prison ...