United States District Court, E.D. Wisconsin
GREGORY D. DAVIS, Plaintiff,
MILWAUKEE COUNTY JAIL and IT MEDICAL SERVICES, Defendants.
Stadtmueller U.S. District Judge.
Gregory D. Davis, who is incarcerated at the Wisconsin Secure
Program Facility, proceeds in this matter pro se. He
filed a complaint alleging that Defendants 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 $35.78. 28 U.S.C. §
Court proceeds to screen the complaint, as it is required to
do with 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, 352
F.3d at 1109-10 (citations omitted).
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 on March 3, 2019, he was injured by a closing
elevator door while being moved through the Milwaukee County
Jail (the “Jail”). (Docket #1 at 2). He does not
describe the extent of his injuries, but states that he told
correctional officers and medical staff that he needed to go
to the hospital. Id. at 2-3. He was not taken to the
hospital, however. Plaintiff was instead taken to the clinic,
given some pain medication, and sent back to his housing
unit. Id. at 3. Plaintiff does not name any
individual defendants; his only targets are the Jail's
medical service company and the Jail itself. Id. at
complaint does not disclose that he filed another case
containing precisely these same allegations in May 2019.
Gregory Dion Davis v. Armor Med. Dep't, et al.,
19-CV-701-LA (E.D. Wis.). Judge Adelman screened
Plaintiff's initial complaint in that case, identified
its many deficiencies, and permitted Plaintiff to file an
amended pleading to correct them. Id., (Docket #8).
The amended complaint still failed to present any viable
claims for relief and was dismissed on that basis on August
16, 2019. Id., (Docket #10). Plaintiff did not
appeal the dismissal.
Court cannot reach the merits Plaintiff's instant
case-which are suspect, in any event, for the reasons stated
by Judge Adelman-because they are barred by res judicata. The
doctrine of res judicata, or claim preclusion, prohibits a
party from re-litigating a case which had previously been
dismissed with prejudice. Czarniecki v. City of
Chi., 633 F.3d 545, 548 (7th Cir. 2011). Res judicata
“has three ingredients: a final decision in the first
suit; a dispute arising from the same transaction (identified
by its ‘operative facts'); and the same litigants
(directly or through privity of interest).”
Id. (quotation omitted). All three are present here.
Plaintiff's prior case sued the same defendants, for the
same conduct, and it was dismissed with prejudice. Miller
v. Wisconsin, 308 Fed.Appx. 1, 2 (7th Cir. 2008) (a
dismissal for failure to state a claim is with prejudice).
Plaintiff cannot simply re-file the same action after the
first is dismissed with prejudice, hoping for a different
result the second time. Gleash v. Yuswak, 308 F.3d
758, 760 (7th Cir. 2002) (“In civil litigation, the
final resolution of one suit is conclusive in a successor
[suit], whether or not that decision was correct. If Gleash
wanted to contest the validity of the district judge's
decision-either on the merits or on the ground that he should
have been allowed to re-plead-he had to appeal.”).
Court will, therefore, dismiss this action with prejudice.
The Court will also assess a strike against Plaintiff as
provided by the Prison Litigation Reform Act, as Judge
Adelman did when he dismissed the earlier action. The Court
gives Plaintiff a further, final warning. If he continues to
file new cases regarding these events, he will not only
receive additional strikes, but he may be subject to
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 ...