Madden v. Luy et al

Filing 10

ORDER signed by Judge Rudolph T. Randa on 7/1/2013. 6/21/2013 Order and Judgment dismissing this case are VACATED; case to be REOPENED. Plaintiff's motion for leave to proceed in forma pauperis 2 GRANTED. Plaintiff to file amended complaint by 7/22/2013; failure to file may result in dismissal of action. Wis. Dept. of Corrections to collect $332.37 balance of filing fee from plaintiff's prison trust account in accordance with 28 USC § 1915(b)(2). (cc: all counsel, via US mail to Robert Madden; Warden-Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT MADDEN,
Plaintiff,
-vs-

Case No.

13-CV-549

DR. ENRIQUE LUY, UW MADISON HOSPITAL,
and WISCONSIN DEPARTMENT OF CORRECTIONS,
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 $17.63.1
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

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On June 21, 2013, the court dismissed this case without prejudice for failure to prosecute based on the
plaintiff’s failure to pay the initial partial filing fee. However, the fee had previously been received, but not recorded
as received. Thus, the court will reopen the case.

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

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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).
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 Racine Correctional Institution. He is suing Dr.
Enrique Luy, UW Madison Hospital, and the Wisconsin Department of Corrections. The
complaint alleges, in its entirety, that the plaintiff experienced “diaphragmatic burn and

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intercostal musculature burn during surgery.” (Compl. ¶ IV.A.) He appears to be bringing
a deliberate indifference claim based on suffering a medical injury during surgery. The
plaintiff seeks monetary damages, and declaratory and injunctive relief.
The court is unable to evaluate the plaintiff’s claim because he not provided
enough information such as when and where the allegations took place. The plaintiff should
also describe how each named defendant is personally involved in his claim.
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 22, 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
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). If an amended complaint is received, it will be
screened pursuant to 28 U.S.C. § 1915A.
IT IS THEREFORE ORDERED that the court’s June 21, 2013, order
dismissing this case and judgment are vacated, and that this case be reopened.
IT IS FURTHER ORDERED the plaintiff’s motion for leave to proceed
in forma pauperis (Docket # 2) be and hereby is granted.

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IT IS FURTHER ORDERED that on or before July 22, 2013, the plaintiff
shall file an amended pleading curing the defects in the original complaint as described
herein.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department
of Corrections or his designee shall collect from the plaintiff’s prisoner trust account the
$332.37 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 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the matter.

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Dated at Milwaukee, Wisconsin, this 1st day of July, 2013.
SO ORDERED,

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

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