DeJesus v. Giese et al

Filing 9

ORDER signed by Judge J P Stadtmueller on 3/23/10 granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis; dismissing Michael Giese as a defendant in this action; directing the U.S. Marshal to serve a copy of the complaint, summon s and this order upon the defendants; ordering defendants to file a responsive pleading to the complaint; the plaintiff shall advise the court regarding his attempts to discover the names of the Waukesha County Jail Medical Staff who were personally involved; directing the Waukesha County Sheriff to collect from the plaintiffs prison trust account the balance of the filing fee owed by collecting monthly payments and forwarding same to the clerk of the court as specified. See Order. (cc: plaintiff, Waukesha County Sheriff, AAG Corey Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
E D W IN DEJESUS, P l a i n t if f, v. M IC H A E L GIESE, and ALL MEDICAL STAFF, W A U K E S H A COUNTY JAIL NURSES AND DOCTORS, names unknown, D e fe n d a n ts . C a s e No. 10-CV-12

ORDER
T h e plaintiff, a federal prisoner who is incarcerated at the W a u k e s h a County J a il, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights w e re violated. This matter comes before the court on the plaintiff's motion for leave to proceed in forma pauperis and for screening of the plaintiff's complaint. The plaintiff is required to pay the statutory filing fee of $350.00 for this action. S e e 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fe e , 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 im m e d ia te ly 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 $38.24. The plaintiff has also paid an additional partial filing fee of $23.80. The court will g ra n t the plaintiff's motion for leave to proceed in forma pauperis.

T h e court is required to screen complaints brought by prisoners seeking relief a g a in s t 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 p ris o n e r 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 d e fen d a n t 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 fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o state a cognizable claim under the federal notice pleading system, the p la in tiff is required to provide a "short and plain statement of the claim showing that [h e ] 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 w h a t the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. T w o m b ly , 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1 9 5 7 )) . However, a complaint that offers "labels and conclusions" or "formulaic

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re c itatio n of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U .S . ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). To s ta te a claim, a complaint must contain sufficient factual matter, accepted as true, "th a t is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. a t 570). "A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint

a lle g a tio n s "must be enough to raise a right to relief above the speculative level." T w o m b ly , 550 U.S. at 555. In considering whether a complaint states a claim, courts should follow the p rin c ip le s set forth in Twombly by first, "identifying pleadings that, because they are n o more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. C t. at 1950. Legal conclusions must be supported by factual allegations. Id. If there a re well-pleaded factual allegations, the court must, second, "assume their veracity a n d then determine whether they plausibly give rise to an entitlement to relief." Id. T o 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 S ta te s ; and 2) the deprivation was visited upon him by a person or persons acting u n d e r color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 8 2 7 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7 th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is

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o b lig e d to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal c o n s tru c tio n . See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (q u o tin g Estelle v. Gamble, 429 U.S. 97, 106 (1976)). A c c o rd in g to the plaintiff's sworn complaint, he arrived at the W a u k e s h a C o u n ty Jail on February 8, 2009. He advised the intake officer that he takes blood p re s s u re pills and "heart burn medication." (Complaint at 3). The plaintiff also avers th a t the nurses on the medical staff were aware of his medication. Nevertheless, m e d ic a l staff refused to give him his medication. About two weeks later, he suffered a "heart attack" and was taken to the hospital with heart problems because he had n o t taken his medication. Id. T h e plaintiff submits that the medical staff (whose names are unknown to the p la in tiff), along with Jail Administrator Giese, violated his Eighth Amendment rights to adequate medical care. They denied him his medication, and the denial of m e d ica tio n and lack of monitoring for his blood pressure resulted in the plaintiff s u ffe rin g from a heart attack. The plaintiff seeks monetary damages, including the c o s ts of this suit. It appears that the plaintiff is a pretrial detainee rather than a convicted p ris o n e r. A pretrial detainee is afforded the same constitutional right to be free from c ru e l and unusual punishment as a convicted inmate. Murphy v. Walker, 51 F.3d 7 1 4 (7th Cir. 1995). This right is violated when a jail official or member of the jail m e d ic a l staff exhibits deliberate indifference to an inmate's serious medical needs,

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th u s resulting in injury. Wilson v. Seiter, 501 U.S. 294 (1991). To establish liability u n d e r the Eighth Amendment, a prisoner must show: (1) that his medical need was o b je c tive ly serious; and (2) that the official acted with deliberate indifference to the p ris o n e r's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994) "[A] prison o ffic ia l may evidence deliberate indifference by failing to treat or delaying the tre a tm e n t of a serious medical need. However, for liability to exist the medical need m u s t be objectively serious." Langston v. Peters, 100 F.3d 1235, 1240 (7th Cir. 1 9 9 6 ). The plaintiff's averments regarding his heart condition suggest a serious m e d ic a l need. Moreover, the denial of prescription medications and his subsequent h e a rt attack could constitute deliberate indifference. T h e plaintiff's complaint does not detail any personal involvement by d e fe n d a n t Michael Giese, the Jail Administrator. There is no respondeat superior lia b ility under § 1983; Giese cannot be held liable for the actions of other employees o f the jail. Iqbal, 129 S.Ct. at __ (Government officials may not be held liable, under B ive n s or § 1983, for unconstitutional conduct of their subordinates under theory of re s p o n d e a t superior; because vicarious liability is inapplicable, plaintiff must plead th a t each government official-defendant, through his or her own actions, has violated th e Constitution). Additionally, the plaintiff does not suggest that he was denied his m e d ic a tio n as a result of a jail policy or custom, for which Giese may be liable in his o ffic ia l capacity. See Thomas v. Cook County Sheriff's Department, 588 F.3d 445,

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4 5 3 -5 4 (7th Cir. 2009). Therefore, Giese will be dismissed as a defendant to this a c tio n . T h e plaintiff has identified the remaining defendants as the "Medical Staff" at th e W a u k e s h a County Jail, including the nurses and doctors. The plaintiff indicates th a t their names are unknown to him. Nevertheless, the plaintiff avers that the n u r s e s were aware of his "correct medication" and that the "medical staff" refused to give the plaintiff his medication. The plaintiff will be allowed to proceed on an E ig h th Amendment medical care claim against the W a u k e s h a County Jail Medical S ta ff. U p o n receipt of this decision and order, the plaintiff should promptly use d is c o ve ry to identify these unknown nurses and doctors. Then, when he has learned t h e i r identities, the plaintiff should move to amend the caption of his complaint to n a m e the individuals who were personally involved in the deprivation of his c o n s titu tio n a l rights so that they can be served. Even if the plaintiff is unsuccessful in his attempts to identify and serve the John Doe defendants, it is the court's duty to assist him in doing so. See Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 5 5 5 (7th Cir. 1996) ("To the extent the plaintiff faces barriers to determining the id e n titie s of the unnamed defendants, the court must assist the plaintiff in conducting th e necessary investigation."). If, after a good faith attempt to discover the names o f the intended defendants, the plaintiff remains unable to identify them, he shall a d vis e the court regarding his attempts and seek help to disclose the identities. The

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p la in tiff shall update the court regarding his attempts to identify the unknown nurses a n d doctors on the medical staff on or before Monday, May 17, 2010. Accordingly, I T IS ORDERED that the plaintiff's motion for leave to proceed in forma p a u p e r is (Docket #2) be and the same is hereby GRANTED. I T IS FURTHER ORDERED that Michael Giese be and the same is hereby D IS M IS S E D as a defendant in this action. IT IS FURTHER ORDERED that the United States Marshal shall serve a copy o f the complaint, the summons, and this order upon the following defendants p u rs u a n t to Federal Rule of Civil Procedure 4: W a u k e s h a County Jail Medical Staff. T h e plaintiff is advised that Congress requires the U.S. Marshals Service to charge fo r making or attempting such service. 28 U.S.C. § 1921(a). The current fee for w a ive r- o f-s e rv ic e packages is $8.00 per item mailed. The full fee schedule is p ro vid e d at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service by the U.S. Marshals Service precisely because in forma pauperis p la in tiffs are indigent, it has not made any provision for these fees to be waived e ith e r by the court or by the U.S. Marshals Service. IT IS ALSO ORDERED that the defendant(s) shall file a responsive pleading to the complaint.

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IT IS FURTHER ORDERED that the plaintiff shall advise the court regarding h is attempts to discovery the names of the W a u k e s h a County Jail Medical Staff who w e re personally involved in the denial of his medication. IT IS FURTHER ORDERED that the W a u k e s h a County Sheriff shall collect fro m the plaintiff's prison trust account the $287.96 balance of the filing fee by c o lle c tin g monthly payments from the plaintiff's prison trust account in an amount e q u a l to 20% of the preceding month's income credited to the prisoner's trust a c c o u n t and forwarding payments to the clerk of the court each time the amount in th e account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments s h a ll 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 W a u k e s h a C o u n ty Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, W is c o n s in D e p a rtm e n t of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857. IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence a n d legal material to: H o n o ra b le J.P. Stadtmueller % Office of the Clerk U n ite d States District Court E a s te rn District of W is c o n s in 3 6 2 United States Courthouse 5 1 7 E. W is c o n s in Avenue M ilw a u k e e , W is c o n s in 53202 P L E A S E DO NOT MAIL ANYTHING DIRECTLY TO THE COURT'S CHAMBERS. It will only delay the processing of the matter.

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T h e plaintiff is hereby notified that he is required to send a copy of every paper o r document filed with the court to the opposing parties or their attorney(s). Fed. R. C iv. P. 5(a). The plaintiff should also retain a personal copy of each document. If th e plaintiff does not have access to a photocopy machine, he may send out id e n tic a l handwritten or typed copies of any documents. The court may disregard a n y papers or documents which do not indicate that a copy has been sent to each d e fen d a n t or to their attorney(s). T h e plaintiff is further advised that failure to make a timely submission may re s u lt in the dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of Court of any change of a d d re s s . Failure to do so could result in orders or other information not being timely d e live r e d , thus affecting the legal rights of the parties. D a te d at Milwaukee, W is c o n s in , this 23rd day of March, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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