Poff v. Pollard et al

Filing 6

ORDER signed by Judge Rudolph T. Randa on 9/23/2015. Plaintiff to file amended pleading by 10/23/2015. (cc: all counsel, via mail to Jeff Poff at Green Bay Correctional Institution - with copy of Courts § 1983 complaint form)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFF POFF,
Plaintiff,
-vs-

Case No. 15-CV-954

WILLIAM POLLARD,
DR. REINEN,
JOHN DOE, WCI Dental Director,
BELINDA SCHRUBBE,
MR. TUCKWELL, WCI Food Service Manager, and
TONYA MOON, ICE Secretary,
Defendants.

DECISION AND ORDER
The plaintiff, Jeff Poff, a state prisoner who is incarcerated at Green
Bay Correctional Institution, filed a pro se civil rights complaint under 42
U.S.C. § 1983, alleging that his civil rights were violated when he was at
Waupun Correctional Institution. He has paid the full filing fee.
Regardless of the plaintiff’s fee status, 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).
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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)).
On January 21, 2014, there was a rock in the baked beans that were
served on the plaintiff’s lunch tray. The plaintiff bit into the rock and
cracked a tooth, which caused him severe pain for the next several weeks
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and even months. The plaintiff was not the only inmate to find rocks in his
baked beans that day.
The plaintiff submitted requests for dental treatment on January
21, 2014, and January 25, 2014; he complained of a cracked tooth and
severe pain. The plaintiff saw the dentist on January 27, 2014. However,
after his dental visit, the plaintiff continued to feel pain in a different part
of his mouth. He submitted additional dental service requests on January
29, 2014, February 11, 2014, and February 27, 2014. The plaintiff also
submitted several inmate complaints regarding the rock in the baked
beans and the delays and deficiencies in the dental treatment he received.
The plaintiff alleges that his rights under the Eighth Amendment
were violated and seeks declaratory relief and compensatory and punitive
damages.
The Eighth Amendment protects prisoners from being subjected to
cruel and unusual punishment, which includes a right to adequate medical
and dental care.

Berry v. Peterman, 604 F.3d 435, 439 (7th Cir. 2010)

(citing Estelle, 429 U.S. at 104-105).

To state an Eighth Amendment

dental care claim, the plaintiff’ must allege (1) that he suffered from an
objectively serious medical condition; and (2) that the individual defendant
was deliberately indifferent to that condition.
-4-

Berry, 604 F.3d at 440

(citations omitted).
In his complaint, the plaintiff has sufficiently alleged a serious
dental need and delays in receiving treatment, both the six days it took to
receive emergency dental care and the delay in receiving follow up care
when his issue was not resolved after his first appointment. The plaintiff
also suggests that the dental examination he received on January 27, 2014,
was not thorough enough.
However, the Court’s next step is to determine who the proper
defendants are for this claim, and the plaintiff has not provided enough
information for the Court to do this. In his statement of claim, the plaintiff
does not indicate the name of the dentist who treated him (though perhaps
it is implied by him naming “Reinen, WCI Dental” a defendant). Nor does
he specifically allege who reviewed and responded to his dental service
requests.

The Court will provide the plaintiff with an opportunity to

amend his complaint to name those individuals personally involved with
his dental care and decisions regarding when he received care.
Next, there are no allegations of personal involvement by Warden
William Pollard. Section 1983 makes public employees liable “for their
own misdeeds but not for anyone else's.” Burks v. Raemisch, 555 F.3d 592,
596 (7th Cir. 2009). The plaintiff does not state a claim against Pollard.
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Nor does the plaintiff state a claim against Food Service Manager
Mr. Tuckwell.

Despite the plaintiff’s attempt to suggest dangerous

conditions that led to a rock in his baked beans, there is no indication of
anything more than a mistake or negligence. This conclusion is reinforced
by the response the plaintiff received to his request for information about
the rocks in the baked beans, which the plaintiff attached to his complaint
(though it was docketed separately). Someone from Food Services wrote:
Mr. Poff I’m sorry to hear about your tooth. FS
uses raw beans to make our bake beans. We hand
wash them to look for stones and other items that
always come in that type of product. I will have
my workers keep checking to avoid any issue like
this from happening again, as there are times
when items do slip by us. We try our best to have
all your food items safe to eat.
(ECF No. 4, p. 2). Negligence is not actionable under § 1983. Thomas v.
Farley, 31 F.3d 557, 558 (7th Cir. 1994).
Turning now to the plaintiff’s claims against inmate complaint
examiner Tonya Moon, the Court notes that only a defendant who is
personally responsible for depriving the plaintiff of a constitutional right
may be held liable under § 1983. Grieveson v. Anderson, 538 F.3d 763, 778
(7th Cir. 2008).
Ruling against a prisoner on an administrative
complaint does not cause or contribute to the
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violation. A guard who stands and watches while
another guard beats a prisoner violates the
Constitution;
a
guard
who
rejects
an
administrative complaint about a complete act of
misconduct does not.
George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007).
With regard to the plaintiff’s dental claim, he filed two inmate
complaints on February 4, 2014.

The plaintiff provided copies of the

acknowledgement of receipt for each of these complaints (WCI-2014-2627
and WCI-2014-2628), but he does not provide documentation of how these
claims were resolved.

He generally states that he used the grievance

procedure to try to resolve the issues but no relief ever came. This could
mean either that the relief he requested was not granted or that he never
received a response to the inmate complaints. The former is likely not a
claim, but the latter could be, since it suggests that Moon failed to do her
job as inmate complaint examiner and therefore was deliberately
indifferent to the plaintiff’s serious dental needs. If the plaintiff continues
to believe that Moon was personally involved in his dental care claim, he
may include allegations against her in his amended complaint.
If the plaintiff wants to proceed on his Eighth Amendment dental
care claims, he must file an amended complaint naming the defendants
personally involved (or identifying them as John or Jane Does).
-7-

Such

amended complaint must be filed on or before Friday, October 23, 2015.
If an amended complaint is received, it will be screened pursuant to 28
U.S.C. § 1915A. 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). In Duda, the appellate court emphasized
that in such instances, the “prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading[.]”

Id. at 1057 (citation

omitted).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT that on or before Friday, October 23,
2015, the plaintiff shall file an amended pleading curing the defects in the
original complaint as described herein.
IT IS ALSO ORDERED that the Clerk of Court provide the
plaintiff with a copy of the Court’s § 1983 complaint form.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-8-

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 Dodge Correctional
Institution, Green Bay Correctional Institution, Waupun Correctional
Institution, and Wisconsin Secure Program Facility and, therefore, if the
plaintiff is no longer incarcerated at one of those institutions, he will be
required to 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
Dated at Milwaukee, Wisconsin, this 23rd day of September, 2015.
BY THE COURT:

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

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