Collins v. Wisconsin Resource Center et al

Filing 11

DECISION AND ORDER signed by Judge Pamela Pepper on 7/10/2015 GRANTING 2 Motion for Leave to Proceed in forma pauperis; DENYING 9 plaintiff's Motion to Amend/Correct Caption, and SCREENING plaintiff's Complaint. (cc: all counsel; by US Mail to plaintiff at Waupun Correctional Institution) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
RODNEY L. COLLINS,
Plaintiff,
v.

Case No. 14-cv-1324-pp

WISCONSIN RESOURCE CENTER,
MICHAEL PREBE,
SARAH HILSCHES,
CO REITZ,
CO MILLER,
CO NICHOLS,
CO SENNEH, and
CO WILLIAMS,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), DENYING PLAINTIFF’S
MOTION TO CORRECT CAPTION (DKT. NO. 9), AND SCREENING
PLAINTIFF’S COMPLAINT
______________________________________________________________________________
The plaintiff, a state prisoner, filed a pro se complaint under 42 U.S.C.
§1983, alleging that the defendants violated his civil rights while he was
housed at the Wisconsin Resource Center. The case comes before the court on
the plaintiff's motion for leave to proceed in forma pauperis, the plaintiff’s
motion to correct caption, and for screening of the plaintiff’s complaint.
I.

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Prison Litigation Reform Act applies to this action because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That
law allows a court to give an incarcerated plaintiff the ability to proceed with

1

his lawsuit without pre-paying the civil case-filing fee, as long as he meets
certain conditions. One of those conditions is a requirement that the plaintiff
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the
initial partial filing fee, the court may allow the plaintiff to pay the balance of
the $350 filing fee over time, through deductions from his prisoner account. Id.
On October 27, 2014, the court issued an order directing the plaintiff to
pay an initial partial filing fee of $2.81. Dkt. No. 5. The court later granted the
plaintiff’s motion to waive the initial partial filing fee. Dkt. No. 8. Nevertheless,
the plaintiff paid the initial partial filing fee on March 9, 2015. The court will
grant the plaintiff’s motion for leave to proceed in forma pauperis, and will allow
the plaintiff to pay the balance of the $350.00 filing fee over time from his
prisoner account, as described at the end of this order.
II.

SCREENING OF PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The law requires the court 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 part or all of
a complaint if the plaintiff raises 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,
2

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, 110910 (7th Cir. 2003) (citations omitted).
To state a claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need 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 Atl. 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).
3

In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “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 the defendants: 1) deprived of a right secured by the Constitution or laws
of the United States; and 2) acted under color of state law. Buchanan-Moore v.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
B.

Facts Alleged in the Complaint

The complaint states that on July 3, 2014, the plaintiff was housed at
the Wisconsin Resource Center. Dkt. No. 1 at 3. He states that at
approximately 3:20 p.m. on that day, while he was being transferred to “the
hole,” defendant Correctional Officer Hilsches put a lot of pressure on his left
leg after he told her his leg had been “messed up” since April and caused him a
lot of unbearable pain. Id. The plaintiff indicates that, at the same time,
4

defendant Captain Michael Prebe jammed his thumb all the way up under the
left side of the plaintiff’s jawbone, which made the plaintiff bite a hole in his
tongue. Id. Prebe also injured the plaintiff’s left wrist when he pulled the
plaintiff away from the cell door to which he was handcuffed. Id. The plaintiff
says “also correctional officers Nichols and Reitz,” though he does not specify
what they did. Id.
The plaintiff further alleges that while he was restrained in a wheelchair,
defendant Officer Senneh hurt him, causing swelling behind his left ear. Id.
Officer Senneh also spit in the plaintiff’s face and did the same thing Captain
Prebe did (putting his thumb up under the plaintiff’s jaw). Dkt. No. 1 at 4. The
plaintiff’s pain did not go away for two weeks.
According to the plaintiff, the defendants used excessive force to further
restrain the plaintiff, though he already was in restraints. He alleges that even
though he warned the officers that he had medical issues, they used force in
the areas where the plaintiff had injuries, causing the plaintiff more pain than
necessary. When the plaintiff informed the staff of his injuries, they ignored his
complaint of pain. Id. at 5.
C.

Legal Analysis of Alleged Facts

“[W]henever prison officials stand accused of using excessive physical
force in violation of the Cruel and Unusual Punishments Clause, the core
judicial inquiry is . . . whether force was applied in a good faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
5

“Thus, a § 1983 plaintiff must establish that prison officials acted wantonly;
negligence or gross negligence is not enough.” Gomez v. Randle, 680 F.3d 859,
864 (7th Cir. 2012) (citing Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir.
2005)).
The plaintiff’s complaint states sufficient facts to allow him to pursue an
Eighth Amendment excessive force claim as to defendants Hilsches, Prebe, and
Senneh. Additionally, though plaintiff simply says “also Nichols and Reitz,” that
is enough at this stage to suggest that either they were involved in the alleged
application of excessive force, or were present and could have intervened to
stop the excessive force. The court concludes, therefore, that the plaintiff also
states Eighth Amendment claims as to Nichols and Reitz.
The complaint, however, contains no allegations regarding defendants
Miller or Williams, and the court will dismiss them as defendants. See
Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008) (only an individual
who caused or participated in the alleged constitutional deprivation can be held
liable in a §1983 action).
Further, the plaintiff cannot sue the Wisconsin Resource Center, because
it is a division of a state agency and is not a “person” within meaning of §1983.
See Will v. Mich Dep’t of State Police, 491 U.S. 58, 66-67, 71, 109 S.Ct. 2304,
105 L.Ed.2d 45 (1989); Williams v. Wisconsin, 336 F.3d 576, 580 (7th Cir.
2003); Smith v. Gomez, 550 F.3d 613, 618 (7th Cir. 2008). “‘[P]risons . . . are
not suable entities because they are not persons capable of accepting service of
plaintiff’s complaints or responding to them.’” Liske v. Wisconsin, No. 08-C6

252, 2008 WL 905229, *1 (E.D. Wis. April 2, 2008) (quoting Maier v. Wood
Cnty. Courthouse, No. 07-C-580-C, 2007 WL 3165825, *2 (W.D. Wis. Oct. 24,
2007)).
III.

PLAINTIFF’S MOTION TO CORRECT CAPTION
On March 4, 2015, the plaintiff filed a motion to correct the caption to

replace the Wisconsin Resource Center with Edward Wall, the Secretary of the
Wisconsin Department of Corrections. The court suspects that the plaintiff filed
this motion because he confused the procedure in a lawsuit filed under §1983
with the procedure required in a habeas corpus petition under 28 U.S.C.
§2254. In a habeas petition, the petitioner must “name as respondent the state
officer who has custody.” Rule 2, Rules Governing Section 2254 Cases in the
United States District Courts. In a §1983 case, which is what the plaintiff has
filed here, the plaintiff must name the individuals whom he believes violated
his rights, not the state official who is holding him in custody.
If, however, the plaintiff is trying to bring a claim against Edward Wall,
the court will not allow him to do so. If the plaintiff is trying to sue Edward
Wall in his individual capacity, the complaint includes no allegations of
personal involvement by Edward Wall. If the plaintiff is trying to bring a claim
against Wall in his capacity as a supervisor, the law does not allow plaintiffs to
hold supervisors liable for the actions of the people they supervise under
§1983. See Grieveson, 538 F.3d at 778; Iqbal, 556 U.S. at 676. If the plaintiff is
trying to bring a claim against Wall in his official capacity, he cannot do so; his
complaint asks only for monetary damages, and not injunctive relief. “To the
7

extent [the plaintiff] seeks monetary damages from defendants acting in their
official capacity, those claims . . . are dismissed as they are barred by the
Eleventh Amendment.” Brown v. Budz, 398 F.3d 904, 918 (7th Cir. 2005).
IV.

MISCELLANEOUS REQUESTS
In his motion to change the caption, the plaintiff also asked the court to

send a briefing schedule to all the parties, and advised the court that he had
not received a notice of appearance from any of the defendants. The reason the
plaintiff hasn’t yet received a briefing schedule or a notice of appearance is
because the court does not require the defendants to be served until after it
has screened the complaint. And it does not set a briefing schedule until after
the defendants have both been served and either answered or otherwise
responded to the complaint.
V.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed in forma

pauperis (Dkt. No. 2). The court ORDERS that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from plaintiff's prison
trust account the $347.19 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 Secretary
of the Wisconsin Department of Corrections or his designee shall clearly
identify the payments by the case name and number assigned to this action.
8

The court DISMISSES the Wisconsin Resource Center, CO Miller, and
CO Williams as defendants to this action.
The court DENIES the plaintiff’s motion to correct caption (Dkt. No. 9).
The court ALLOWS the plaintiff to proceed on Eighth Amendment claims
against defendants Prebe, Hilsches, Reitz, Nichols, and Senneh.
The court ORDERS that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, the court will
send electronic copies of plaintiff’s complaint and this order to the Wisconsin
Department of Justice for service on defendants Prebe, Hilsches, Reitz, Nichols,
and Senneh.
The court ORDERS that pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, defendants
Prebe, Hilsches, Reitz, Nichols, and Senneh shall file a responsive pleading to
the complaint within sixty (60) days of receiving electronic notice of this order.
The court ORDERS 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
9

served electronically through the court’s electronic case filing system. The
plaintiff should also retain a personal copy of each document filed with the
court.
The court further advises plaintiff that if he does not timely file
documents, the court may dismiss his case 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.
The court will send copies of this order to the warden of the institution
where the inmate is confined.
Dated at Milwaukee this 10th day of July, 2015.

10