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Szopinski v. Staniec

United States District Court, E.D. Wisconsin

July 13, 2018

KIRK SZOPINSKI, Plaintiff,
v.
JEREMY L. STANIEC, JOHN KOONTZ, CO MUHLENBERG, CO GOTTERSCHALK, CO STRUNZ, GWENDOLYN A. VICK, and CRYSTAL MARCHANT, 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 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.

         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 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 Plaintiff. Id.

         Plaintiff 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.

         Correctional 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. Id.

         Shortly 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 cell. Id.

         About 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 (“HSU”). Id.

         Later 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. Id.

         On 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 ...


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