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Szopinski v. Foster

United States District Court, E.D. Wisconsin

July 5, 2018

KIRK SZOPINSKI, Plaintiff,
v.
BRIAN FOSTER, JENNIFER H. KACYON, THOMAS NELSON, MICHAEL CLARK, and JOHN DOE, Defendants.

          ORDER

          J. P. STADTMUELLER U.S. DISTRICT JUDGE

         Plaintiff, 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.

         The 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. § 1915A(b).

         A claim 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. 2011).

         To 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.

         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 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, 106 (1976)).

         Plaintiff 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.[1] 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.

         At 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.

         A half 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.

         At 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. Id.

         Plaintiff 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 passing. Id.

         Plaintiff 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.

         Kacyon 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 ...


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