Johnson v. Bono et al

Filing 8

ORDER granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Defendant Wisconsin Department of Corrections is dismissed. (cc: all counsel and via US Mail to Steven Johnson, Warden, and AAG Finkelmeyer) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVEN M. JOHNSON,
Plaintiff,
v.

Case No. 17-C-15

DR. O. BONO, DR. CHESTER,
CORRECTIONAL OFFICER WEARY,
and WISCONSIN DEPARTMENT OF CORRECTIONS,
Defendants.

SCREENING ORDER

The plaintiff, who is incarcerated at Fox Lake Correctional Institution (FLCI), filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes
before the court on the plaintiff's petition to proceed in forma pauperis.
The plaintiff is required to pay the statutory filing fee of $350.00 for this action. See
28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he or she can
request leave to proceed in forma pauperis. The 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). The plaintiff has been assessed an initial partial filing fee of
$6.64 in this action, but indicates he is unable to pay that fee. It appears the prisoner will be unable
to pay the initial partial filing fee, and so that fee is waived. 28 U.S.C. § 1915(b)(4).
The 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). 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) (citations omitted).
To 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
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, a complaint that offers “labels and conclusions” or “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 allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
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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 his 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).
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)).
Johnson claims Defendants exhibited deliberate indifference to his serious medical needs,
which resulted in personal injury and a denial of immediate medical treatment. At all times relevant,
Johnson was incarcerated at the Milwaukee Secured Detention Facility. He contends that his
medical records included an instruction that he should be housed in a low bunk on a low tier because
he was being treated with Warfarin. Johnson alleges that Dr. Bono failed to recommend the low
bunk/low tier restriction, and as a result, Johnson slipped and fell on the upper tier on December 28,
2015 and January 11, 2016. He further alleges that Dr. Bono failed to treat a serious shoulder injury
that arose from the December fall and that Dr. Chester failed to treat the left Achilles tendon and
right knee injuries that arose from the January fall. Johnson also claims that Corrections Officer
Weary was aware of Johnson’s injuries and failed to file an incident report which allegedly resulted
in a four-day delay in receiving treatment. Finally, Johnson alleges Dr. Chester failed to provide
treatment for six months for his shoulder, Achilles, and knee injuries.
It is well-established that deliberate indifference to the serious medical needs of a person held
in custody violates his or her constitutional rights. Estelle v. Gamble, 429 U.S. 97, 104 (1976);
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Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). To establish liability, a prisoner
must show (1) that his medical need was objectively serious; and (2) that the official acted with
deliberate indifference to the prisoner’s health or safety. Farmer, 511 U.S. at 834. A serious
medical need is “one that has been diagnosed by a physician as mandating treatment or one that is
so obvious that even a lay person would recognize the necessity for a doctor’s attention.” Wynn v.
Southward, 251 F.3d 588, 593 (7th Cir. 2001). Deliberate indifference requires more than
negligence; it requires that the official know of, yet disregard, an excessive risk to the inmate's health
or safety. Farmer, 511 U.S. at 835, 837. Subjective knowledge of the risk is required: "[A]n
official’s failure to alleviate a significant risk that he should have perceived but did not, while no
cause for commendation, cannot under our cases be condemned as the infliction of punishment."
Id. at 838. At this stage, Johnson has stated an Eighth Amendment claim. Based on the facts stated
above, this court cannot say that Johnson’s medical conditions do not constitute a serious medical
need or that prison officials did not demonstrate deliberate indifference to his condition.
To recover under § 1983 a plaintiff must establish that a defendant was personally responsible
for the deprivation of a constitutional right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
An official satisfies the personal responsibility requirement of § 1983 if the conduct causing the
constitutional deprivation occurs at his direction or with his knowledge and consent. Id. At this
stage of the litigation, Johnson may proceed against Dr. Bono and Dr. Chester. Johnson may also
proceed against Officer Weary based upon Johnson’s allegation that Weary knew of Johnson’s injury
yet did nothing at the time. He may not proceed against the Wisconsin Department of Corrections,
because it is not a “person” who can be sued under § 1983. Thomas v. Illinois, 697 F.3d 612, 613
(7th Cir. 2012).
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ORDER
IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma
pauperis be and hereby is GRANTED.
IT IS FURTHER ORDERED that defendant Wisconsin Department of Corrections is
DISMISSED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, copies of plaintiff’s complaint and this order are
being electronically sent today to the Wisconsin Department of Justice for service on the state
defendants.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between the
Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading to the
complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff's prison trust account the $350.00 balance
of the filing fee by collecting monthly payments from the plaintiff's prison trust account in an amount
equal to 20% of the preceding month's income credited to the prisoner's trust account and
forwarding payments to the clerk of the 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.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the institution
where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin
Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
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IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal
material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court - WIED
United States Courthouse
125 S. Jefferson St., Suite 102
Green Bay, Wisconsin 54301

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of address. Failure to
do so could result in orders or other information not being timely delivered, thus affecting the legal
rights of the parties.
Dated this 3rd

day of February, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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