Banks v. Patton et al

Filing 8

SCREENING ORDER signed by Judge Lynn Adelman on 5/27/14 granting 2 Motion for Leave to Proceed in forma pauperis; denying 7 Motion to Appoint Counsel. Further ordering that defendant Racine County Jail Correctional Health Care is DISMISSED. F urther ordering that the United States Marshal shall serve a copy of the complaint and this order upon the defendants and that the defendants shall file a responsive pleading to the complaint. Further ordering the Racine County Sheriff to collect from plaintiffs prison trust account the $321.75 balance of the filing fee as set forth herein. (cc: via USPS to plaintiff, Racine County Sheriff, AAG Corey Finkelmeyer) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TARENCE BANKS,
Plaintiff,
v.

Case No. 14-CV-381

RACINE COUNTY JAIL CORRECTIONAL HEALTH CARE,
NURSE LESLIE,
UNKNOWN, Sued as Nurse Practitioner Jane Doe,
NURSE BILL, Sued as Nurse Bill Doe,
NURSE MEHRING, CHRISTOPHER SCHMALING,
DEPUTY KOLDEWAY, PATRICK NOONAN,
MELISSA A. GONZALES, SGT. MORAN,
LT. BARKER, LT. FRIEND,
UNKNOWN, Sued as Evans Doe, Classification Jailer,
CAPTAIN WEARING, and SGT. LEDEZMA,
Defendants.

SCREENING ORDER
Plaintiff, who is confined at the Racine County Jail, 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 plaintiff’s petition to proceed in forma pauperis. He has been assessed and paid
an initial partial filing fee of $28.25.
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
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

2

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, on October 8, 2013, plaintiff was at a hospital because
he suffered a gun shot wound to his left arm. As a result, his left arm was amputated.
Plaintiff arrived at the Racine County Jail on November 12, 2013. He was initially
placed in an intake cell that was not handicap accessible. Plaintiff was unable to get off
of his bed in time make it to the toilet and urinated on himself several times. He was in that
cell for about five days at which time he was moved to Unit 2D dayroom 4, or “Med/Seg but
in reality it’s just a segregation cell.” This cell was also not handicap accessible.
Plaintiff was on shower restriction during this time because there were no handicap
accessible showers in Unit 2D dayroom 4. Once plaintiff was approved for a shower, he
3

was instructed to use the dayroom shower which had no handrails or bars. Plaintiff
complained about this and was given a regular chair to sit on but he fell in the shower
trying to use the chair. He was then approved to go downstairs to use the shower which
had handrails. A chair was also placed in the shower but it was the same plastic chair
plaintiff previously fell with while using. Plaintiff complained about this and it took almost
two months for Jail staff to put a medical shower chair in the shower room but they
removed the handrails off the chair which rendered it useless anyway. Plaintiff was only
escorted to the shower every four to five days and he developed a rash.
Plaintiff developed an infection in his arm wound because his dressing was not
changed properly as directed. He was unable to wash his arm and back area and as a
result developed a rash. Plaintiff received cream for the rash but he was unable to apply
the cream himself and “had to let a mentally challenged sex offender put cream on my
back.” Plaintiff was also denied his original mattress and his medically approved extra
mattress between 8 a.m. and 8 p.m.
Plaintiff was again placed in a non-handicap accessible cell in dayroom 4 and this
time noone would help him at all. He had trouble getting his dinner out of the ziplock bag,
tying his laundry bag, and making his bed.
One morning while Officer Pearson was escorting plaintiff to the showers, defendant
Koldeway shouldered plaintiff and tried to knock him down. The incident was investigated
and plaintiff gave a statement to the Racine County Sheriff’s Department. Plaintiff was
injured from the incident.
Plaintiff received a conduct report from Timothy Venagas following the incident. He
was found guilty following an unfair and impartial disciplinary hearing where he was a staff
4

advocate. Plaintiff received ten days in segregation. While there, he did not receive his
medically approved items. Plaintiff received another fifteen days in segregation because
defendant Noonan charged plaintiff with threatening him. At the hearing on the conduct
report for the charge, plaintiff’s witness was never called. He spent twenty-five days total
in segregation.
Plaintiff claims that between November 2013 and April 2014, he was denied a
handicap accessible cell and that he suffered daily because he could not get his
handicapped needs met. He seeks monetary damages.
Although not entirely clear, it appears that plaintiff was a pretrial detainee at all times
relevant. At this stage of the proceedings, he may proceed on Fourteenth Amendment
conditions of confinement and deliberate indifference to a serious medical needs claims
regarding the conditions at the Jail and the alleged failure to treat his wound as directed.
Plaintiff may also proceed on due process claims related to his disciplinary hearings which
resulted in segregation stays. Lastly, he may proceed on an excessive force claim based
on the allegation that defendant Koldeway shouldered him causing injury.
Plaintiff will need to use discovey to identify the Doe defendants. Defendant Racine
County Jail Correctional Health Care will dismissed because it is not a suable entity under
§ 1983.
Motion to Appoint Counsel
Plaintiff has filed a motion to appoint counsel. The court has discretion to recruit
counsel to represent a litigant who is unable to afford one in a civil case. Navejar v. Iyiola,
718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C. § 1915(e)(1); Ray v. Wexford Health Sources,
Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). As a threshold matter, litigants must make a
5

reasonable attempt to secure private counsel on their own. Pruitt v. Mote, 503 F.3d 647,
653 (7th Cir. 2007). If the plaintiff makes a reasonable attempt to secure counsel, the
court must examine “whether the difficulty of the case – factually and legally – exceeds the
particular plaintiff’s capacity as a layperson to coherently present it.” Navejar, 781 F.3d at
696 (citing Pruitt, 503 F.3d at 655). This inquiry focuses not only the plaintiff’s ability to try
his case, but also includes other “tasks that normally attend litigation” such as “evidence
gathering” and “preparing and responding to motions.” Id.
In this case, plaintiff has not provided any indication that he has unsuccessfully
attempted to obtain legal counsel on his own. Nonetheless, plaintiff has provided a
detailed complaint setting forth his claims. Moreover, the issues in this case appear at this
stage to be straightforward and uncomplicated. Therefore, at this juncture, given the
nature of the case, it appears that plaintiff is competent to litigate this case himself.
Accordingly, his motion for appointment of counsel will be denied.
ORDER
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket # 2) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion to appoint counsel (Docket # 7)
is DENIED.
IT IS FURTHER ORDERED that defendant Racine County Jail Correctional Health
Care is DISMISSED.
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the
complaint and this order upon the defendants pursuant to Federal Rule of Civil Procedure

6

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-ofservice 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 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 Racine County Sheriff shall collect from
plaintiff’s prison trust account the $321.75 balance of the filing fee by collecting monthly
payments from 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 copies of this order be sent to Racine County Sheriff
and to Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin 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:
Office of the Clerk
United States District Court
7

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.
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 27th day of May, 2014.
s/ Lynn Adelman
_______________________
LYNN ADELMAN
District Judge

8