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Buford v. Jensen

United States District Court, E.D. Wisconsin

July 29, 2019

DONALD BUFORD, Plaintiff,
v.
MARK J. JENSEN, CORY A. SABISH, JOHN DOE OFFICER, AND BELINDA SCHRUBBE, Defendants.

          SCREENING ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE.

         Plaintiff Donald Buford, an inmate confined at the Waupun Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983 alleging that the defendants violated his constitutional rights. Buford has paid the $400 filing fee. This order screens his complaint.

         1. Screening the Complaint

         2.1 Federal Screening Standard

         Under the Prison Litigation Reform Act, the court must screen complaints brought by prisoners seeking relief from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint if the prisoner 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).

         In determining whether the complaint states a claim, the court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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 for relief under 42 U.S.C. § 1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes pro se complaints liberally and holds them to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).

         1.2 Buford's Allegations

         Buford filed a forty-seven-page complaint against defendants Nurse Mark Jensen, Lieutenant Cory Sabish, John Doe, and Health Services Unit Supervisor Belinda Schrubbe. When the incident giving rise to this case occurred, Buford was incarcerated at the Waupun Correctional Institution (WCI) and the defendants worked there.

         Buford alleges that on June 19, 2013, he suffered an asthma attack while sitting at a computer in his math class. He fainted, fell forward, and hit his head on the keyboard. Buford then fell backward and heard a loud “pop sound” as he landed on the floor on his tailbone. He felt extreme pain in his lower back and also felt pain in the back of his neck from hitting his head on the keyboard. He rolled over and tried to breathe, which was difficult due to the asthma attack, and asked for his inhaler. Buford's teacher sat on the floor with him and told him to hold on and that his inhaler was coming.

         A few minutes later, defendant Nurse Mark Jensen arrived. Buford told Nurse Jensen he was having an asthma attack and needed his inhaler. Jensen “put some little thing on my finger, looked at it and said to me, your blood is low in oxigen [sic] cause you are hyperventilating. You don't need no inhaler.” (ECF No. 1 at 6.) He told Buford to breathe slowly or not breathe at all. As Buford was still gasping for air, he told Jensen he was still in pain and that his back hurt. Jensen told Buford he would have to get up and walk back to his cell. Buford tried but could not walk. Jensen denied Buford his inhaler and denied him medical treatment for his back and neck pain. Jensen pushed Buford in a wheelchair to his cell hall and had staff help Buford crawl up the stairs and down a long hallway to his cell. He did not give Buford medical treatment.

         Jensen put Buford on the list to be seen by the medical doctor the next day. That left Buford to suffer in pain for twenty hours in his cell until he was seen by the doctor the next day. The day after the injury, Dr. Manlove examined Buford and diagnosed him with an acute back sprain. Dr. Manlove ordered that Buford receive an injection of Toradol right after seeing him and also prescribed Buford Naproxen for pain. Upon transfer to the Wisconsin Resource Center, Buford continued to receive treatment for his back and neck injury.

         Defendants Sabish and John Doe were present when Jensen refused to give Buford an inhaler for his asthma and when he refused him treatment for his back and neck injury. They were also present when Buford was forced to crawl up the stairs and to his cell, and they knew that Buford was not going to get treatment until the next day.

         Defendant Schrubbe made and enforced a rule at WCI that asthma inhalers are not allowed in school. Buford talked to her about this rule and was told that, if inmates have an asthma attack in school, staff would consider it to be hyperventilating. Schrubbe's intentional disregard for inmates' need for asthma inhalers at school caused her to make and enforce this rule, which allowed and caused Jensen to deny Buford an inhaler as he was having an asthma attack ...


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