United States District Court, E.D. Wisconsin
ERNEST T. TOMLINSON, Plaintiff,
DOMINIC SCIORTINO, KICKHAVER, SHERIFF JAMES JOHNSON, and INMATE RATZEL, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
Ernest T. Tomlinson, who is confined at the Ozaukee County
Jail and who is representing himself, filed a complaint under
42 U.S.C. § 1983, alleging that the defendants violated
his civil rights. This decision resolves the plaintiff's
motion for leave to proceed without prepaying the filing fee,
(Docket #2), and screens his complaint, (Docket #1). This
case is currently assigned to U.S. Magistrate Judge William
E. Duffin; however, because not all parties have had the
opportunity to consent to magistrate judge jurisdiction, the
case was randomly referred to a district judge for the
limited purpose of screening the complaint. The case will be
returned to Magistrate Judge Duffin for further proceedings
after entry of this order.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
Prison Litigation Reform Act applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28
U.S.C. § 1915.
law allows a court to give an incarcerated plaintiff the
ability to proceed with his case without prepaying the civil
case filing fee, if he meets certain conditions. One of those
conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. § 1915(b). Once the plaintiff pays
the initial partial filing fee, the court may allow him to
pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id. On March
20, 2019, Magistrate Judge Duffin ordered the plaintiff to
pay an initial partial filing fee of $2.46. He paid that fee
on April 9, 2019. Therefore, the court will grant the
plaintiff's motion for leave to proceed without
prepayment of the filing fee. He must pay the remainder of
the filing fee over time in the manner explained at the end
of this order.
SCREENING THE PLAINTIFF'S COMPLAINT 3.1 Federal Screening
requires the court 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 if the plaintiff raises
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. 28 U.S.C. § 1915A(b). To state
a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows a court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556).
state a claim 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
defendant was acting under color of state law.
Buchanan-Moore v. Cty. 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
gives a pro se plaintiff's 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,
The Complaint's Allegations
plaintiff alleges that he is a Dodge Correctional Institution
inmate housed at the Ozaukee County Jail. On December 9,
2018, after a verbal dispute, defendant Inmate Ratzel
(“Ratzel”) charged the plaintiff and headbutted
him. The plaintiff pushed him away but Ratzel grabbed the
plaintiff and punched him on the side of his head. The
plaintiff pushed him away again only to again find himself
entangled until deputies arrived. A deputy escorted the
plaintiff to a holding cell for about one hour and gave him
ice and ibuprofen. The plaintiff requested medical attention
but was told no one was on duty. He was sent to segregation
for twenty-four hours pending a disciplinary hearing.
next day, the plaintiff was released from segregation and
escorted to a new tier. He again asked to see medical staff
but was told to “put in a medical request whereupon he
would be charged so Tomlinson spoke with another deputy who
advised him to use the kiosk.” (Docket #1 at 3-4.) The
plaintiff was ignored for three days until a deputy told him
he would be seen.
December 13, 2018, defendant Nurse Sciortino
(“Sciortino”) saw the plaintiff and examined his
head. The plaintiff told Sciortino about the pain he was
having, his inability to focus or read a book without pain,
and migraines. He also told him that ice would not help since
it had already been four days and the lump was not receding.
The plaintiff asked Sciortino to see a doctor because he was
previously diagnosed with a “class 2 concussion”
and wanted to be on the “safe side.” Id.
at 4. Sciortino ignored the plaintiff's statement and
gave him some ibuprofen. The plaintiff states that he now has
a problem focusing and reading without pain.
December 28, 2018, the plaintiff received his disciplinary
hearing/disposition by a non-defendant, Sgt. Glass. After
review of the video of the incident, the plaintiff was
“exonerated of the charges of assaulting any person,
fighting with or threatening another with bodily harm as ...