United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
who is incarcerated at the Wisconsin Resource Center, filed a
pro se complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. (Docket #1).
This matter comes before the Court on Plaintiff's motion
to proceed in forma pauperis. (Docket #2). Plaintiff
has been assessed and paid an initial partial filing fee of
$4.48. 28 U.S.C. § 1915(b)(4).
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
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; 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)); 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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “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. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is 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)).
allegations in this case are straightforward. On March 8,
2017, while incarcerated at Waupun Correctional Institution
(“Waupun”), he was placed in observation status.
(Docket #1 at 2). This status is generally used to monitor
inmates who present a risk of self-harm. On March 9, 10, and
11, Plaintiff was informed by various prison officials during
medication passes-which occur in the morning, at noon, in the
evening, and at bedtime-that his psychotropic medications
were unavailable. Id. at 2-3. He did not receive any
such medications on those days, and he complains that this
caused him to go through severe medication withdrawals.
complaint crosses the very low threshold set at screening to
state a claim for deliberate indifference to his serious
medical needs, in violation of the Eighth Amendment. To state
such a claim, Plaintiff must show: (1) an objectively serious
medical condition; (2) that Defendants knew of the condition
and were deliberately indifferent in treating it; and (3)
this indifference caused him some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry has two components. “The official
must have subjective knowledge of the risk to the
inmate's health, and the official also must disregard
that risk.” Id. Negligence cannot support a
claim of deliberate indifference, nor is medical malpractice
a constitutional violation. Estelle v. Gamble, 429
U.S. 97, 105-06 (1976); Roe v. Elyea, 631 F.3d 843,
857 (7th Cir. 2011). While the denial of his psychotropic
medication might ultimately be explained as mere negligence
or the result of a considered treatment decision by his care
providers, at the present stage the Court, generously
construing Plaintiff's allegations, finds that he states
an actionable claim.
problem remains with his complaint, however. Plaintiff does
not identify by name or occupation the various prison
officials who informed him that his medication was
unavailable. See (Docket #1). Instead, he identifies
each of them only as John Doe. Moreover, although he names
four John Does in the caption of his complaint, he only
refers to two John Does in his factual allegations.
Id. at 1-3.
Court cannot exercise personal jurisdiction over non-existent
or unidentified individuals. As a result, Plaintiff must
identify the prison officials presently named in the
complaint as John Does. To facilitate service of the
complaint and identification of the Doe defendants, the Court
will join the Waupun warden, Brian Foster
(“Foster”), as a defendant in this action.
See Duncan v. Duckworth, 644. F.2d 653, 655 (7th
Cir. 1981). Plaintiff is advised that in the Court's
scheduling order, which will be issued after Foster is
served, he will be afforded a period of time in which to
conduct discovery into the identities of the Doe defendants.
He should seek this information from Foster. Failure to amend
the complaint to identify the Doe defendants by the deadline
set forth in the scheduling order may result in dismissal of
reasons stated above, Plaintiff shall be permitted to proceed
on a claim of deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment, against
Defendants. 28 U.S.C. § 1915A(b).
closing, the Court will address Plaintiff's pending
motions requesting the appointment of counsel. (Docket #7,
#8). As a civil litigant, Plaintiff has no automatic right to
court-appointed counsel. Luttrell v. Nickel, 129
F.3d 933, 936 (7th Cir. 1997). However, under 28 U.S.C.
§ 1915(e)(1), the “court may request an attorney
to represent any person unable to afford counsel.” The
court should seek counsel to represent the plaintiff if: (1)
he has made reasonable attempts to secure counsel; and (2)
“‘the difficulty of the case-factually and
legally-exceeds the particular plaintiff's capacity as a
layperson to coherently present it.'” Navejar
v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (quoting
Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)
(en banc)). Plaintiff's motions must be denied at this
time, as he has submitted no evidence that he has made any
attempts-much less reasonable attempts-to secure his own
lawyer. To satisfy this Court that he has made reasonable
attempts to obtain his own counsel, Plaintiff must write to
several lawyers requesting representation and provide copies
of the letters he receives from them denying his request. On
this ground alone, the motions must be denied, without
considering Plaintiff's arguments about the complexity of
the case or his particular need for the aid of
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
IS FURTHER ORDERED that Plaintiff's motions
requesting the appointment of counsel (Docket #7, #8) be and