United States District Court, E.D. Wisconsin
Stadtmueller. U.S. District Judge.
Dayone Lamonte Moffett, who is incarcerated at Waupun
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that Defendant
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's motion to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
has paid an initial partial filing fee of $12.19. 28 U.S.C.
court shall 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. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“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- 10 (7th Cir. 2003)
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)). However, a complaint that offers mere
“labels and conclusions” or a “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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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.
state a claim for relief under 42 U.S.C. Section 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. 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 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)).
alleges that he was housed in the Milwaukee County Jail on
May 15, 2017, and was given the wrong medication by an
unnamed nurse. (Docket #1 at 2). Plaintiff was supposed to
receive an Ibuprofen, but was instead given a Valium.
Id. at 2-3. The Valium made Plaintiff drowsy.
Id. at 3. The medical staff did not give Plaintiff
any treatment, instead letting the medication's effects
wear off over time. Id.
allegations invoke his Eighth Amendment right to adequate
medical care. Prison officials violate this right when they
“display deliberate indifference to serious medical
needs of prisoners.” Greeno v. Daley, 414 F.3d
645, 652 (7th Cir. 2005) (quotation omitted). Deliberate
indifference claims contain both an objective and a
subjective component: the inmate “must first establish
that his medical condition is objectively,
‘sufficiently serious, '; and second, that prison
officials acted with a ‘sufficiently culpable state of
mind,' - i.e., that they both knew of and disregarded an
excessive risk to inmate health.” Lewis v.
McLean, 864 F.3d 556, 562-63 (7th Cir. 2017) (quoting
Farmer v. Brennan, 511 U.S. 825, 834 (1994)
(internal citations omitted)).
his experience may not have been pleasant, Plaintiff's
allegations are not anywhere near severe enough to implicate
constitutional concerns. Being given one incorrect dosage,
and merely becoming drowsy as a result, is not a serious
medical condition. Further, there is no indication that the
medication mix-up was anything other than an innocent
mistake. The Court finds that Plaintiff has failed to state a
viable claim for relief, and will therefore dismiss this
action with prejudice.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) (Docket #2) be and the same is
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED with prejudice pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that Plaintiff has incurred a “strike” under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account
the balance of the filing fee, $337.81, by collecting monthly
payments from Plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to Plaintiff's trust account and forwarding
payments to the Clerk of Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action. If Plaintiff is
transferred to another institution, ...