United States District Court, E.D. Wisconsin
O'KEEFER D. HOOKER, Plaintiff,
SGT. SCHROEDER, RN PENNY, CARLISSA, RN NO. 836, CORRECTIONAL HEALTH DEPARTMENT, MANAGER RN NO. 630, and KENOSHA COUNTY DETENTION CENTER, Defendants.
William C. Griesbach, District Judge
O'Keefer D. Hooker, who is currently serving a state
prison sentence at Kenosha County Detention Center and
representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
This matter comes before the court on Plaintiff's motion
for leave to proceed without prepaying the full filing fee
and to screen the complaint.
to Proceed without Prepayment of the Filing Fee
has requested leave to proceed without prepayment of the full
filing fee (in forma pauperis). A prisoner plaintiff
proceeding in forma pauperis is required to pay the
full amount of the $350.00 filing fee over time. See
28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified
copy of his prison trust account statement for the six-month
period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been
assessed an initial partial filing fee of $1.77. On December
5, 2019, Plaintiff filed a motion requesting an extension of
time to pay the initial partial filing fee. Because Plaintiff
lacks the funds to pay the initial partial filing fee, the
court waives the initial partial filing fee and grants
Plaintiff's motion for leave to proceed without prepaying
the filing fee.
of the Complaint
court is 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).
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. 28 U.S.C. §
1915A(b). A claim 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).
state a cognizable claim under the federal notice pleading
system, 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). The complaint must
contain sufficient factual matter “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)). The court accepts the factual
allegations as true and liberally construes them in the
plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 651 (7th Cir. 2013). Nevertheless, 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).
of the Complaint
alleges that the Kenosha County Detention Center (KCDC) and
the Correctional Health Department, along with multiple
registered nurses have violated his rights because they have
left him to suffer from major tooth pain. He claims the
Correctional Health Department has completed several
assessments and noted that Plaintiff's mouth was starting
to swell and that there is little to no room for
Plaintiff's wisdom teeth to come in. He alleges “RN
#836” advised that Plaintiff needs to see an oral
surgeon to have them removed. The Correctional Health
Department Manager “RN #630” told Plaintiff that
the Health Department does not pull wisdom teeth and that he
would have to wait to have his wisdom teeth removed at his
next facility, which would not occur for five to six months.
He alleges the Health Department has only provided him with
Ibuprofen and put him on the list to see a dentist. Plaintiff
asserts that he has been filing grievances and medical slips
for over three weeks to receive treatment for his pain.
Manager RN #630 told Plaintiff that the Health Department has
a “first come, first served” policy. Plaintiff
alleges that Sergeant Schroeder has done nothing to resolve
the situation. Instead, he told Plaintiff that Plaintiff is
on the list for dental and will be seen when it is his turn.
Plaintiff is a pretrial detainee, his inadequate medical care
claim arises under the Due Process Clause of the Fourteenth
Amendment, rather than the Cruel and Unusual Punishment
Clause of the Eighth Amendment. See Bell v. Wolfish,
441 U.S. 520, 531 (1979). A Fourteenth Amendment claim is
reviewed under an objective reasonableness standard. See
Miranda v. Lake, 900 F.3d 335, 352 (7th Cir. 2018)
(citing Kingsley v. Hendrickson, 135 S.Ct. 2466
(2015)). First, the court determines “whether the
medical defendants acted purposefully, knowingly, or perhaps
even recklessly when they considered the consequences of
their handling of [the plaintiff's] case.”
Id. at 353. Then the court determines “whether
the challenged conduct was objectively reasonable, ”
which requires the court to “focus on the totality of
facts and circumstances faced by the individual alleged to
have provided inadequate medical care and to gauge
objectively . . .whether the response was reasonable.”
McCann v. Ogle Cty., Illinois, 909 F.3d 881, 886
(7th Cir. 2018) (citing Miranda, 900 F.3d at 353).
Plaintiff alleges that RN #836 and Manager RN #630 have
ignored his complaints of severe tooth pain and have failed
to provide treatment. Based on these allegations, Plaintiff
may proceed on his claims of inadequate medical care against
RN #836 and Manager RN #630.
also alleges that he wrote several grievances to Sergeant
Schroeder but Sergeant Schroeder did not intervene. An
inmate's correspondence to an administrator may
“establish a basis for personal liability under §
1983 where that correspondence provides sufficient knowledge
of a constitutional deprivation” and the administrator
fails to intervene on the inmate's behalf. Perez v.
Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015) (citing
Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir.
1996)). Plaintiff's allegations are sufficient at this
stage to state a failure to intervene claim against Sergeant
complaint does not contain any allegations against RN Penny
or Carlissa. Therefore, they will be dismissed as defendants.
In addition, Plaintiff cannot proceed on his claims against
the Kenosha County Detention Center or the Correctional
Health Department because they are not suable entities under
§ 1983. See Smith v. Knox Cty. Jail, 666 F.3d
1037, 1040 (7th Cir. 2012); Powell v. Cook Cty.
Jail, 814 F.Supp. 757, 758 (N.D. Ill. 1993). The court
finds that Plaintiff may proceed on his inadequate medical
care claims against RN #836 and Manager RN #630 and his
failure to intervene claim against Sergeant Schroeder, with
the understanding that Plaintiff will be required to file an
amended complaint specifically identifying the RN defendants
he has named in order for any claims against them to proceed.
IS THEREFORE ORDERED that Plaintiff's motion for
leave to proceed in forma ...