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
little from the original complaint but is typed, as opposed
to handwritten. (Docket #6). 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 January 6, 2018, at about 1:00 a.m., he
yelled from his cell to John Koontz (“Koontz”), a
correctional sergeant, and Gwendolyn Vick
(“Vick”), a nurse, telling them that he intended
to harm himself and wanted to be placed on observation
status. (Docket #6 at 2). Koontz and Vick did not attend to
then activated the emergency call button in his cell.
Id. Correctional Officer Muhlenberg
(“Muhlenberg”) answered the call, and Plaintiff
told him that he was going to harm himself by swallowing his
eyeglasses. Id. Plaintiff asked to be placed on
observation status. Id. Muhlenberg told Plaintiff he
did not care what Plaintiff intended to do because he had
other things to do. Id. Plaintiff then broke the
frames of his glasses and swallowed one of the bows.
Id. He activated his emergency call button again and
informed Muhlenberg that he swallowed part of his glasses and
that he was going to cut himself and swallow the other parts
of his glasses. Id. at 3.
Officer Gotterschalk (“Gotterschalk”) then
responded to Plaintiff's cell. Id. Plaintiff
threw broken pieces of his glasses at the cell door and told
Gotterschalk that he had already swallowed another part of
his glasses. Id. Plaintiff threatened to swallow
additional parts of his glasses if he was not put on
observation status. Id. Gotterschalk left
Plaintiff's cell without saying anything, and Plaintiff
swallowed another part of his glasses. Id.
Gotterschalk returned to Plaintiff's cell and Plaintiff
told him that he swallowed the other bow of his glasses.
Id. Gotterschalk left Plaintiff's cell.
thereafter, Lieutenant Jeremy Staniec (“Staniec”)
arrived at Plaintiff's cell. Id. Plaintiff
described to Staniec the events of that morning, and
Plaintiff and Staniec had a disagreement about whose fault it
was that nothing was done to help Plaintiff. Id.
Plaintiff was removed from his cell and placed in a strip
an hour and a half later, around 3:00 a.m., Plaintiff was
examined by Vick. Id. at 4. She told Plaintiff that
if he vomited or coughed up blood he should alert staff
immediately, who would then alert the Health Services Unit
that day, at about 1:45 p.m., Plaintiff vomited blood and
activated his emergency call button in his cell. Id.
Correctional Officer Strunz (“Strunz”) responded
and Plaintiff told him about having swallowed glasses pieces
earlier and told him that he had just vomited blood.
Id. Strunz did not notify HSU or anyone else.
Id. Plaintiff was then put on observation status,
though he does not say who caused that to happen.
January 8, 2018, Plaintiff was seen by Torria Van Buren
(“Van Buren”), who is not a defendant, for an
evaluation to determine if he could be removed from
observation status. Id. She told Plaintiff she
needed to consult with HSU because parts of Plaintiff's
glasses were still in his stomach. Id. Van Buren
left and then returned to Plaintiff's cell sometime
later, stating that she spoke to Crystal Marchant