Knight v. Pollard et al

Filing 7

ORDER signed by Judge J P Stadtmueller on 7/12/13: granting 2 Plaintiff's Motion for Leave to Proceed in forma pauperis; 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; pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, th e 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 $349.65 balance of the filing fee owed by collecting monthly payments and forwarding same to the clerk of the court as specified. (cc: Plaintiff, Warden of Waupun Correctional Institution, all counsel) (nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEWAYNE D. KNIGHT,
Plaintiff,

Case No.13-CV-641-JPS

v.
WILLIAM POLLARD, JOSEPH BEAHM,
JASON WENZEL, C.O. STARZYNSKI,
BRIDGET BAYER, C.O. JONES,
C.O. DEHENEL, and C.O. HINTZ,

ORDER

Defendants.

The plaintiff, who is incarcerated at Waupun 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 has been assessed and paid an
initial partial filing fee of $0.35. (Docket #6; Docket Entry dated 6/24/13).
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).
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).
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)).
In his complaint, plaintiff alleges that on February 24, 2013, an inmate
housed a few cells away from his was sprayed with pepper spray, and that

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the pepper spray caused the plaintiff to suffer an asthma attack. Plaintiff
asserts that defendants violated his constitutional rights in failing to provide
medical attention. Prisoners have a right under the Eighth Amendment to the
United States Constitution to adequate medical care. Farmer v. Brennan, 511
U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97 (1976). Plaintiff alleges that he
was deprived of this right by the staff at Waupun Correctional Institution,
who acted with deliberate indifference and under the color of law. Plaintiff
also alleges that he was injured by this deprivation. The court sees no
indication that the claim is frivolous or malicious, and further finds that the
claim is plausible on its face. Thus, the plaintiff may proceed on his claim.
The court further finds that the plaintiff is truly indigent and,
therefore, grants his motion to proceed on his claim in forma pauperis.
Accordingly,
IT IS 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 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.

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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 $349.65 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.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, the plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. The
Prisoner E-Filing Program is in effect at Green Bay Correctional Institution
and Waupun Correctional Institution and, therefore, if the plaintiff is no
longer incarcerated at either institution, 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.

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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 12th day of July, 2013.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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