Prude v. Howell

Filing 18

ORDER granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. (cc: all counsel and via US Mail to Terrance Prude and Warden) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TERRANCE PRUDE,
Plaintiff,
v.

Case No. 17-C-159

NURSE HOWELL,
Defendant.

SCREENING ORDER

Plaintiff Terrance Prude, who is incarcerated at the Waupun Correctional Institution, filed
a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter
comes before the court for screening Prude’s complaint and on his petition to proceed in forma
pauperis.
The plaintiff is required to pay the $350.00 statutory filing fee 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 can request leave to
proceed in forma pauperis. Prude 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 and paid an initial partial filing fee of $11.07. Prude’s motion
to proceed in forma pauperis will be granted.
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
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 “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’s allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citations omitted).
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In 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.
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 him by a person or persons acting under color of state law. Buchanan-Moore v.
Cnty. 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)).
Prude alleges Nurse Howell violated his Eighth Amendment rights by being deliberately
indifferent to his asthma attacks. He claims he suffered two asthma attacks but was denied an
inhaler. The Eighth Amendment, which prohibits “cruel and unusual punishments,” imposes a duty
on prison officials to take reasonable measures to guarantee an inmate’s safety. Farmer v. Brennan,
511 U.S. 825, 832 (1994); see U.S. Const. Amend. VIII. A prison official’s “deliberate indifference”
to a prisoner’s medical needs or to a substantial risk of serious harm to an inmate violates the Eighth
Amendment. See Farmer, 511 U.S. at 828.

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The test for such a violation has two parts. Id. at 834. First, the deprivation alleged must
be “sufficiently serious” when viewed objectively. Id. To be liable, a prison official must deny the
“minimal civilized measure of life’s necessities” or create “a substantial risk of serious harm.” Id.
Second, the official must have acted out of “deliberate indifference” to the inmate’s health or safety.
Id. 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. Id. 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.
Here, Prude’s allegations, if true, could rise to a level constituting deliberate indifference.
An inability to breathe, due to asthma, could create a substantial risk of serious harm and is
sufficiently serious when viewed objectively. Prude’s allegations that Nurse Howell willfully ignored
his pleas also suggests a possibility that she acted with deliberate indifference to the risks of his heath
and safety. Therefore, Prude will be allowed to proceed on his deliberate indifference claim against
Nurse Howell.
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, copies of the plaintiff’s complaint and this order are
being electronically sent to the Wisconsin Department of Justice for service.
IT IS ALSO ORDERED that Nurse Howell shall file a responsive pleading to the
complaint.
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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 $338.93 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 his action.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the institution
where the inmate is confined.
The plaintiff is hereby notified that he is required to send a copy of every paper or document
filed with the court to the opposing parties or their attorney(s). Fed. R. Civ. P. 5(a). The plaintiff
should also retain a personal copy of each document. If the plaintiff does not have access to a
photocopy machine, he may send out identical handwritten or typed copies of any documents. The
court may disregard any papers or documents which do not indicate that a copy has been sent to
each defendant or to their attorney(s).
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 changes 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.

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SO ORDERED this 28th day of February, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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