Golden v. Baenen et al

Filing 18

ORDER signed by Judge J P Stadtmueller on 2/11/13: granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis; denying as moot 7 plaintiff's Motion to permit the use of release account funds to pay the initial partial filin g fee; 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 o n the state defendants; the defendants shall file a responsive pleading to the complaint within 60 days of receiving electronic notice of this order; directing the Secretary of the Wisconsin Dept of Corrections or his designee 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, Warden of Green Bay Correctional Institution, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PARISH M. GOLDEN,
Plaintiff,
v.

Case No. 12-CV-1270-JPS

MICHAEL BAENEN, GARY HAMBLIN,
JEANANNE ZWIERS,
C.O. II BRANDENBERG, and T. HUCK,

ORDER
Defendants.

The plaintiff, who is incarcerated at Green Bay 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 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), and has been assessed and paid an
initial partial filing fee of $2.64.
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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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. 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)).
The plaintiff alleges that, pursuant to a statewide Department of
Corrections (DOC) policy, inmate medications are distributed by correctional
officers rather than nurses or medical staff at Green Bay Correctional
Institution (GBCI). The plaintiff has received incorrect medication, as have
other inmates. The plaintiff is concerned that the dispensing of medications
by untrained correctional staff rather than medical personnel places him and
other inmates at risk, and he seeks nominal and punitive damages for the
past errors that have been made as well as injunctive relief that would
require medication to be distributed by trained medical staff. The plaintiff
names GBCI Warden Michael Baenen, DOC Secretary Gary Hamblin, GBCI
Health Service Manager Jeananne Zwiers, and Correctional Officer
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Brandenberg as defendants on this claim. The plaintiff also seeks to proceed
on a negligence claim against C.O. Brandenberg for dispensing the wrong
medication to him.
The plaintiff also alleges that defendant GBCI Mailroom Sergeant T.
Huck violated his First Amendment rights and unlawfully retaliated against
him in June 2012 by intentionally failing to send his outgoing legal mail to
the Attorney General by certified mail, and doing so again intentionally as
retaliation after plaintiff filed a grievance against him for his previous failure
to send his previous outgoing legal mail by certified mail. The plaintiff seeks
nominal and punitive damages on this claim as well as an injunction
requiring defendant Huck to stop retaliating against him and to stop
interfering with his legal mail.
The court finds that the plaintiff may proceed on the following claims:
an Eighth Amendment medical care claim against defendants Baenen,
Hamblin, Zwiers, and Brandenberg for deliberate indifference to the serious
medical need of inmates to reliably receive correct medications; and a First
Amendment claim against defendant Huck for interference with his legal
mail and retaliation. Plaintiff’s negligence claim against defendant
Brandenberg will be dismissed because he does not allege any injury
resulting in loss or actual damages as a result of her conduct. See White v.
U.S., 148 F.3d 787, 793 (7th Cir. 1998) (“In Wisconsin, a plaintiff must
establish four elements to succeed in a negligence action: (1) a duty of care on
the part of the defendant; (2) a breach of that duty; (3) a causal connection
between the conduct and the injury; and (4) actual loss or damages resulting
from the injury.”).
Accordingly,

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IT IS THEREFORE ORDERED that the plaintiff's motion for leave to
proceed in forma pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the plaintiff’s motion to permit the
use of release account fees to pay the initial partial filing fee (Docket #7) be
and the same is hereby DENIED as moot;
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 FURTHER 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 $347.36 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 FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined; and
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Pilot Project, the plaintiff shall submit all correspondence and case filings to
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institution staff, who will scan and e-mail documents to the Court. The
Prisoner E-Filing Pilot Project is in effect only at Green Bay Correctional
Institution and, therefore, if the plaintiff is no longer incarcerated there, he
will be required to submit all correspondence and legal material to:
Honorable J.P. Stadtmueller
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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 at Milwaukee, Wisconsin, this 11th day of February, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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