Lindsey v. Runice et al
Filing
9
ORDER signed by Judge Rudolph T. Randa on 5/5/2016. 5 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Defendants to file responsive pleading within 60 days. Wisconsin DOC to collect $350 balance of filing fee from plaintiff's prison trust account (cc: all counsel, via mail to Carlos Lindsey and Warden at Wisconsin Secure Program Facility)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CARLOS D. LINDSEY,
Plaintiff,
-vs-
Case No. 16-CV-75
CO LUCAS RUNICE, SGT. OVERBO,
TIMOTHY HAINES, and JEROME SWEANEY,
Defendants.
SCREENING ORDER
The pro se plaintiff, a Wisconsin state prisoner, filed a complaint
alleging that the defendants violated his civil rights.
This matter comes
before the court on the plaintiff’s petition to proceed in forma pauperis. The
prisoner lacks the 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)).
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Complaint Allegations
The plaintiff is incarcerated at the Wisconsin Secure Program Facility
(WSPF). The defendants are: Correctional Officer Lucas Runice; Sergeant
Overbo; Waupun Correctional Institution Warden Timothy Haines; and
Security Director Jerome Sweeney.
The plaintiff alleges that on June 11, 2013, he informed Sergeant
Overbo that he had several pills and was about to overdose on the pills.
Several minutes later, Officer Runice approached the plaintiff’s cell and
demanded to see the pills. The plaintiff showed Officer Runice the pills. Then
the plaintiff took the pills while Runice watched.
The plaintiff had to be
rushed to a local hospital for medical care.
Officer Runice issued the plaintiff a conduct report, charging him with
Disobeying
Orders,
Attempted
Battery,
and
Misuse
of
Prescription
Medication. Defendant Sweeney approved the conduct report. The plaintiff
was found guilty of the charges and received a penalty of 360 days disciplinary
segregation and restitution of $1,923.29 for the hospital charges.
Warden
Haines approved the penalty.
The plaintiff claims that defendants Runice and Overbo failed to take
the necessary steps to prevent him from overdosing, in violation of the Eighth
Amendment. He also claims that defendants Haines and Sweeney violated
his Eighth Amendment rights because they failed to properly train prison
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officials on how to respond to an inmate who is displaying suicidal behavior.
The plaintiff also claims that defendant Hines issued him the conduct report,
and that defendant Sweeney approved the conduct report, in retaliation for
the plaintiff’s exercise of his First Amendment right to express his suicidal
thoughts and feelings.
For relief, the plaintiff seeks declaratory and injunctive relief. He also
seeks monetary damages.
Discussion
The Court finds that the plaintiff may proceed on an Eighth
Amendment deliberate indifference to risk of suicide claim against defendants
Runice and Overbo, and on a failure to train claim against defendants Haines
and Sweeney. Moreover, the plaintiff may proceed on his retaliation claim at
this early stage. See Pell v. Procunier, 417 U.S. 817, 822 (1974) (“[A] prison
inmate retains those First Amendment rights that are not inconsistent with
his status as a prisoner or with the legitimate penological objectives of the
corrections system.”).
ORDER
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave
to proceed in forma pauperis (Docket No. 2) is GRANTED.
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court,
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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 ALSO 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.
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 $350.00 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 ALSO 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.
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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
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 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 5th day of May, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge
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