Vines v. Beth et al

Filing 10

ORDER signed by Judge Rudolph T. Randa on 5/20/2014 GRANTING 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis. Plaintiff's request for preliminary injunction DENIED as moot. Defendants Kenosha County Detention Center, Kenosha C ounty Jail, Kenosha County, and Health Services Unit DISMISSED. US Marshal to serve copy of complaint and this order upon named defendant pursuant to FRCP 4. Defendants to file responsive pleading. Plaintiff to pay filing fee. (cc: all counsel, via US mail to Robert Vines)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT VINES, JR.,
Plaintiff,
-vs-

Case No.

14-CV-279

DAVID BETH, HEALTH SERVICES UNIT,
KENOSHA COUNTY JAIL,
KENOSHA COUNTY DETENTION CENTER,
JANE AND JOHN DOES, Jail Doctors, nurse practitioners,
nurses and psych doctors at Kenosha County Jail and
Kenosha County Detention Center,
and KENOSHA COUNTY,
Defendants.

SCREENING ORDER

The plaintiff, who was previously confined at the 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. He lacks funds to pay an initial partial filing fee. See 28 U.S.C. § 1915(b)(4).
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

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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)).
According to the complaint, the plaintiff began serving a six-month sentence
at the Kenosha County Jail on February 8, 2014. He was granted “Huber and work crew”
and was accepted to the work crew on February 10, 2014. The plaintiff is schizophrenic and

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suffers from chronic lower back pain. He asked for medication for his pain and because he
was hearing voices. The Jail nurse did not provide the plaintiff with medication. The Jail
doctor took him off of the work crew due to being schizophrenic and having lower back pain.
The plaintiff claims that he is disabled and otherwise qualified to participate
in the work crew but, based on his disability, was excluded in violation of the Americans
with Disabilities Act. He also claims that the defendants were deliberately indifferent to his
serious medical needs and negligent based on their failure to provide pain medication or to
change or increase his “psych med.” The plaintiff further claims that he was retaliated
against for the exercise of his constitutional right to request medical treatment by taking him
off the work crew. He seeks injunctive relief and monetary damages.
At this stage of the proceedings, the plaintiff may proceed on his claims as set
forth above. The plaintiff will need to use discovery to identify the Doe defendants who
were personally involved in his claims. Defendant David Beth, who is the Kenosha County
Sheriff, may remain as a named defendant until the plaintiff is able to identify the defendants
who were personally involved. See Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555
& n.3 (7th Cir. 1996).
However, defendants Health Services Unit, Kenosha County Jail, and Kenosha
Count Detention Center will be dismissed because they are not suable entities under § 1983.
In addition, Kenosha County will be dismissed because there is no indication that the
plaintiff’s claims were the result of a county custom, policy, or practice. See Monell v. Dep’t

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of Soc. Servs. of New York, 436 U.S. 658, 690-92 (1978).
Request for Preliminary Injunction
The complaint seeks a preliminary injunction to allow the plaintiff on the work
crew. However, on April 23, 2014, the plaintiff notified the Court that he is no longer
incarcerated at the Kenosha County Detention Center. His new residence is a street address
in Kenosha, Wisconsin. Thus, the plaintiff’s request for a preliminary injunction will be
denied as moot. See Maddox v. Love, 655 F.3d 709, 716 (7th Cir. 2011).
ORDER
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 the plaintiff’s request for a preliminary
injunction is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendants Health Services Unit, Kenosha
County Jail, Kenosha County Detention Center, and Kenosha County are DISMISSED.
IT IS FURTHER ORDERED that the United States Marshal shall serve a
copy of the complaint and this order upon the named defendant pursuant to Federal Rule of
Civil Procedure 4. The plaintiff is advised that Congress requires the U.S. Marshals Service
to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current fee for
waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at 28
C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service by the

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U.S. Marshals Service precisely because in forma pauperis plaintiffs are indigent, it has not
made any provision for these fees to be waived either by the court or by the U.S. Marshals
Service.
IT IS ALSO ORDERED that the defendants shall file a responsive pleading
to the complaint.
IT IS FURTHER ORDERED that the plaintiff shall pay the full filing fee
($350.00) to the Clerk of Court.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
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. As each filing will be electronically scanned and
entered on the docket upon receipt by the clerk, the plaintiff need not mail copies to the
defendants. All defendants will be served electronically through the court’s electronic case
filing system. The plaintiff should retain a personal copy of each document filed with the
Court.
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
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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 20th day of May, 2014.
SO ORDERED,

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

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