Harris v. Hallisy et al

Filing 7

ORDER signed by Judge Rudolph T. Randa on 6/11/2013 GRANTING 2 Motion for Leave to Proceed in forma pauperis. On or before 7/8/2013 Plaintiff to file amended pleading curing defects in original complaint (see Order for details). Kenosha County Sher iff to collect from Plaintiff's prison trust account the $347.07 balance of the filing fee. (cc: all counsel, via US mail to Brian Harris at Kenosha County Detention Center, Kenosha County Sheriff, Corey Finkelmeyer-Asst. Atty. General) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

BRIAN IVY SCOTT HARRIS,
Plaintiff,
-vs-

Case No.

13-CV-471

KENOSHA COUNTY MEDICAL STAFF,
KENOSHA COUNTY POLICE DEPARTMENT,
and KENOSHA COUNTY SHERIFF’S DEPARTMENT,
Defendants.

SCREENING ORDER

The plaintiff, who is incarcerated at Kenosha County Detention Center, 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 has been assessed and paid an initial partial filing fee of $0.93.
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 alleges that during his eighteen months confinement at the
Kenosha County Jail (“Jail”) he contracted the scabies virus. His symptoms are itchy sores
spread over his arms and legs. Jail medical staff failed to administer effective medication
for the symptoms. In addition, the Jail does not quarantine or immunize inmates as they are
brought into the Jail. Inmates are placed in general population with contagious diseases. The

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plaintiff claims that his rights under the Eighth Amendment have been violated. He seeks
monetary relief.
The plaintiff’s allegations implicate his rights under the Eighth Amendment
based on a deliberate indifference to a serious medical need claim. However, the plaintiff
is suing Kenosha County Medical Staff and Kenosha County Police and Sheriff’s
Department, and neither party is a proper defendant. See Best v. City of Portland, 554 F.3d
698 (7th Cir. 2009) (citing Chan v. Wodnicki, 123 F.3d 1005, 1007 (7th Cir. 1997); West v.
Waymire, 114 F.3d 646, 646-47 (7th Cir. 1997)).
It appears that the plaintiff wants to proceed against individuals based on
contracting the scabies virus and failing to treat the symptoms. To do that, the plaintiff will
need to name individual defendants who were personally involved in the complaint
allegations. It also appears that the plaintiff wants to proceed on a claim that the Jail’s policy
or practice resulted in him contracting scabies. The proper defendant for a policy claim
would be Kenosha County.
If the plaintiff wants to proceed, he must file an amended complaint curing the
deficiencies in the original complaint as described herein. Such amended complaint must be
filed on or before July 8, 2013. Failure to file an amended complaint within this time period
may result in dismissal of this action.
The plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.” The amended

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complaint supersedes the prior complaint and must be complete in itself without reference
to the original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the appellate court emphasized that in
such instances, the “prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted). If an amended complaint is received,
it will be screened pursuant to 28 U.S.C. § 1915A.
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 on or before July 8, 2013, the plaintiff
shall file an amended pleading curing the defects in the original complaint as described
herein.
IT IS FURTHER ORDERED that the Kenosha County Sheriff shall collect
from the plaintiff’s prisoner trust account the $347.07 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 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 Kenosha
County Sheriff and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin

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Department of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable Rudolph T. Randa
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the matter.
Dated at Milwaukee, Wisconsin, this 11thday of June, 2013.
SO ORDERED,

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

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