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Tomlinson v. Sciortino

United States District Court, E.D. Wisconsin

April 25, 2019

ERNEST T. TOMLINSON, Plaintiff,
v.
DOMINIC SCIORTINO, KICKHAVER, SHERIFF JAMES JOHNSON, and INMATE RATZEL, Defendants.

          ORDER

          J. P. STADTMUELLER U.S. DISTRICT JUDGE.

         1. INTRODUCTION

         Plaintiff 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.

         2. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE

         The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. § 1915.

         That 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.

         3. SCREENING THE PLAINTIFF'S COMPLAINT 3.1 Federal Screening Standard

         The law 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).

         To 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, 106 (1976)).

         3.2 The Complaint's Allegations

         The 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.

         The 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.

         On 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.

         On 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 ...


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