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It v. Michlowski

United States District Court, E.D. Wisconsin

May 10, 2019

ANTHONY K. IT, Plaintiff,
v.
THOMAS MICHLOWSKI, ERICA KOERE, LUKE ALLEN, GEORGE MONESE, OFFICER KESKE, JOHN AND JANE DOES, and WARDEN NOVAK, Defendants.

          ORDER

          Lynn Adelman United States District Judge.

         Plaintiff Anthony It, who is representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that the defendants violated his civil rights. He also filed a motion for leave to proceed without prepayment of the filing fee. The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. § 1915. That law allows an incarcerated plaintiff to proceed with his case without prepaying the civil case filing fee as long as he meets certain conditions. One of those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C. § 1915(b).

         On April 12, 2019, U.S. Magistrate Judge David Jones (the judge assigned to the case at that time) ordered the plaintiff to pay an initial partial filing fee of $0.13. The plaintiff paid the fee on April 23, 2019. Accordingly, I will grant the plaintiff's motion to proceed without prepayment of the filing fee. He must pay the remainder of the fee over time in the manner described at the end of this order.

         Under the PLRA, I am required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). I 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. 28 U.S.C. § 1915A(b).

         To state a cognizable claim under the federal notice pleading system, a 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). 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. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).

         I am 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)).

         The plaintiff alleges that, on February 14, 2019, while he was housed at Columbia Correctional Institution, he was given an injection of Paliperidone, which is an antipsychotic medication. According to the plaintiff, the medication was to last thirty days. A week later, on February 21, the plaintiff transferred to the Wisconsin Resource Center. The plaintiff asserts that defendant Dr. Thomas Michlowski ordered he be given another injection.

         According to the plaintiff, defendant patient care technician Lucas Allen came to his cell door and informed him he needed to receive an injection. The plaintiff asserts that he told Allen that he had received an injection a week earlier and that he did not feel comfortable getting another injection. Allen allegedly told the plaintiff he had no choice; officers would make him take the medication by force.

         The plaintiff states that defendant nurse Erica Koere then came to his door and told him that there was no record of him receiving the medication a week earlier. She allegedly informed him that the records showed he had refused the medication on February 18, 2019. The plaintiff told Koere that he had received an injection a week earlier, and he did not want another injection because he was afraid of the side effects. The plaintiff alleges that defendant officer Keske negligently recorded in his medical records that he had refused his medication.

         Allen then returned to the plaintiff's cell and allegedly told him officers were organizing a cell extraction team so the medication could be administered by force. The plaintiff states that he did not want to get hurt or get a conduct report, so he agreed to get the injection. He insisted they document that he tried to refuse the injection because he had received an injection a week before. According to the plaintiff, officers and supervisors came to his door. The plaintiff states that he was handcuffed and Koere injected him with the antipsychotic medication.

         The plaintiff asserts that, as a result of receiving the second injection, he suffered from involuntary shaking of his head and neck, soreness in his right arm, nausea, and migraines. The plaintiff states that the side effects lasted for five days.

         The plaintiff alleges that “Nurse Koere and Doctor Michlowski failed to correctly review [his] health care record-which would have showed that [he] received the injection on the 14th of February 2019.” Docket No. 1 at 5. He also asserts that Allen violated his Fourteenth Amendment rights when he threatened to use force to administer the medication. He seeks to sue Dr. George Monese for failing to order the proper treatment after meeting with the plaintiff on January 29, 2019. He also alleges that John and Jane Doe policy makers violated his rights by allowing correctional officers to administer medications. Finally, he alleges that defendant Warden Novak is liable for failing to properly train officers on documenting medication refusals.

         The plaintiff fails to state a claim against the defendants in connection with his allegations that he was prematurely prescribed and administered a second injection of antipsychotic medication. To state a federal claim, the plaintiff must allege that the defendants knew he faced a substantial risk of serious harm and were deliberately indifferent to that risk. Knight v. Wiseman, 590 F.3d 458, 463 (7th Cir. 2009). Mere negligence by a prison official is not sufficient to state a claim. Id.

         The plaintiff acknowledges that, after he told Allen he had received an injection a week earlier, Koere checked his medical files to confirm whether his assertions were accurate. She told him that the records did not show that he had received an injection; rather, they indicated that he had refused the injection. The plaintiff asserts that he told her the records were incorrect, but prison staff are not required to believe everything an inmate says, especially if the staff member investigates the accuracy of the prisoner's assertions. See Olson v. Morgan, 750 F.3d 708, 713 (7th Cir. 2014). None of the plaintiff's allegations suggest that the defendants had any ...


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