Staffa v. Pollard et al

Filing 8

ORDER signed by Judge Rudolph T. Randa on 4/9/2013 GRANTING 2 Motion for Leave to Proceed in forma pauperis; Copies of this Order and plaintiff's complaint to be electronically sent to Wis. Dept. of Justice; Defendants to file responsive plead ing within 60 days of receipt of this Order; Dept. of Corrections shall collect $346.42 balance of filing fee in monthly payments from plaintiff's prison trust account. (cc: all counsel, via US mail to Mark Staffa and Warden at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARK P. STAFFA,
Plaintiff,
-vs-

Case No.

13-CV-5

WILLIAM POLLARD, DR. DAVID BURNETT,
DR. P. SUMNICHT, BELINDA SCHRUBBE,
and JAMES GREER,
Defendants.

SCREENING ORDER

The plaintiff, a Wisconsin state prisoner, 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. He has been assessed and paid an
initial partial filing fee of $3.58.
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

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relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
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 is incarcerated at Waupun Correctional Institution (“WCI”).
Defendant William Pollard is the Warden at WCI; Dr. P. Sumnicht is a doctor at WCI; and
Belinda Schrubbe is the Health Services Unit Manager at WCI. The plaintiff is also suing
Dr. David Burnett, who is the Medical Director of the Wisconsin Department of Corrections
Bureau of Health Services, and James Greer, who is the Director of the Bureau of Health

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Services.
The plaintiff alleges that due to ongoing neglect and failure to follow
institution policy and procedures regarding infectious diseases, he has been infected with
“MRSA, Impetigo, & Entrobacter.” (Compl. Aa 3.) He also alleges that defendants
Schrubbe and Sumnicht continually lied to him and told him he did not have a staph infection
when he did in fact have one, and that they failed to properly treat his infection. According
to the plaintiff, WCI medical staff withheld information confirming that the plaintiff had
MRSA. He has suffered irreversible and damaging effects from the diseases. The plaintiff
further alleges that he wrote a multitude of letters to defendants Greer, Burnett, and Pollard
informing them that WCI medical staff were not treating his diseases.
The plaintiff claims that the defendants were deliberately indifferent to his
serious medical needs based on his exposure to communicable diseases at WCI, and their
alleged failure to inform him of and treat him for the diseases. He seeks injunctive relief and
monetary damages. At this stage of the proceedings, the plaintiff may proceed on his claims
under the Eighth Amendment. See Forbes v. Edgar, 112 F.3d 262, 265-67 (7th Cir. 1997).
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket # 2) be and hereby is GRANTED.
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

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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
$346.42 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 a copy of this order be sent to the warden of the
institution where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable Rudolph T. Randa
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the matter.
The plaintiff is notified that from now on, he is required under Federal Rule
of Civil Procedure 5(a) to send a copy of every paper or document filed with the court to the
opposing party or, if the opposing party is represented by counsel, to counsel for that party.
Fed. R. Civ. P. 5(b). 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 the opposing party or that
party’s attorney, if the party is represented by an attorney.
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 9th day of April, 2013.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

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