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Clark v. Does

United States District Court, E.D. Wisconsin

July 6, 2018

SHANE CLARK, Plaintiff,
v.
JOHN DOES 1-4, Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge.

         Plaintiff, 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).

         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. 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).

         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; 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.

         In 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.

         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. 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)).

         Plaintiff's 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. Id.

         Plaintiff's 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.

         One 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.

         The 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 this action.[1]

         For the 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).

         In 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 counsel.[2]

         Accordingly, IT IS ORDERED that Plaintiff's motion for leave to proceed in forma pauperis (Docket #2) be and the same is hereby GRANTED;

         IT IS FURTHER ORDERED that Plaintiff's motions requesting the appointment of counsel (Docket #7, #8) be and the ...


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