Gish v. Jackson et al

Filing 9

DECISION AND ORDER signed by Judge Pamela Pepper on 12/27/2016 GRANTING 2 Plaintiff's motion for leave to proceed without prepayment of the filing fee; GRANTING 8 Plaintiff's motion for access to release account; and DISMISSING the case. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHRISTOPHER GISH,
Plaintiff,
v.

Case No. 16-cv-811-pp

DR. EDGAR B. JACKSON, and
RELEVANCE COUNSELING,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
GRANTING THE PLAINTIFF’S MOTION FOR ACCESS TO RELEASE
ACCOUNT (DKT. NO. 8), AND DISMISSING THE CASE
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a civil rights complaint under 42 U.S.C. §1983 alleging that the defendants
violated his Eighth Amendment rights when they prescribed him medication
that caused him to murder his girlfriend. Dkt. No. 1. This order resolves the
plaintiff’s motion for leave to proceed without prepayment of the filing fee, dkt.
no. 2, and his motion for access to his release account, dkt. no. 8, and screens
the plaintiff’s complaint.
I.

IN FORMA PAUPERIS STATUS

The Prison Litigation Reform Act applies to this action because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
law allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without pre-paying the civil case-filing fee, as long as he meets
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certain conditions. Id. 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 July 19, 2016, the court assessed an initial partial filing fee of
$28.34. Dkt. No. 6. The plaintiff paid that amount through two payments
received on August 1, 2016 and August 23, 2016. Therefore, the court will
grant the plaintiff’s motion for leave to proceed without prepayment of the
filling fee, 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 AMENDED COMPLAINT
A.

Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts 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
may dismiss a compliant, or part of it, if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915(e)(2)(B).
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). The complaint need not plead specific
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facts, and need only provide “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)). “Labels and
conclusions” or a “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Indeed, allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions not supported by facts “are not entitled to
the assumption of truth.” Id. Second, the court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives 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)).
B.

Facts Alleged in the Complaint

Defendant Edgar Jackson is a psychiatrist employed by Relevance
Counseling Services (“RCS”) in Milwaukee, Wisconsin. Dkt. No. 1, ¶ 6. On July
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9, 2012, the plaintiff’s girlfriend introduced the plaintiff to Jackson because
Jackson was their son’s doctor. Id. After meeting with the plaintiff for only five
minutes, Jackson prescribed the plaintiff one-milligram tablets of
Xanax/Alprazolam and Lamicatal. Id., ¶¶ 6, 10. Jackson instructed the
plaintiff to take this tablet three times a day, for a total of three milligrams per
day. Id., ¶ 12.
The plaintiff states, “Dr. Edgar B. Jackson was unaware of the legal
medical dose a person was allowed to intake into their system as a 1st time
patient.” Id., ¶ 9. He states that Jackson should have prescribed the plaintiff
only .025-.05 milligram tablets, three times a day, for a total of 0.75-1.5
milligrams per day. Id., ¶¶ 10, 12. Jackson also did not inform the plaintiff of
any of the side effects of the drugs, including “speaking incoherently, state of
confusion, hallucinating, impaired memory, disinhibition[/]resist a thought
[sic], cognitive disorder, depression, hypomania[/]mania, rage, and fear.” Id.,
¶¶ 12-13.
On July 14, 2012, the plaintiff stabbed his girlfriend to death, and tried
to commit suicide. Id., ¶ 7. The court sentenced him to serve forty years in
custody, followed by twenty years of extended supervision. Id., ¶ 8. The plaintiff
alleges that because of Dr. Jackson, he was “overmedicated, which caused him
to commit murder and attempt suicide.” Id., ¶11. For relief, the plaintiff seeks
monetary damages. Id., ¶¶ 15-17.

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C.

Legal Analysis

Federal courts have the jurisdiction to hear lawsuits that arise out of
violations of federal law, or from violations of the federal Constitution, as well
as lawsuits between citizens of different states under certain circumstances. In
this case, the plaintiff’s complaint says that he is suing the defendants under a
federal civil rights law, 42 U.S.C. §1983. Section 1983 prohibits defendants
acting “under color of . . . law” from depriving others of their civil rights.
Section §1983 applies only to individuals acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48-49 (1988). Indeed, the purpose of §1983 is to
“deter state actors, and private individuals in collaboration with state officials,
from using a ‘badge of authority’ to deprive individuals of rights guaranteed by
the Constitution.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (quoting
Wyatt v. Cole, 504 U.S. 158, 161 (1992). To prevail on a §1983 civil rights
claim, a plaintiff must show that the defendant exercised power “possessed by
virtue of state law and made possible only because the wrongdoer is clothed
with the authority of state law.” West, 487 U.S. at 48-49.
The complaint contains no indication that Dr. Jackson or Relevance
Counseling Services were state actors. According to the small business web site
Manta, Relevance Counseling Service at 3635 West Oklahoma Avenue in
Milwaukee, Wisconsin is a “privately held company.”
www.manta.com/c/mtq3330/relevance-counseling-service (last visited
December 26, 2016). The court can find no indication that Relevance is owned
by, operated by or affiliated with the state government.
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Further, the plaintiff alleges that he met Dr. Jackson for the first time on
July 9, 2012, and that he killed his girlfriend less than a week later. Dkt. No. 1
at 2. Thus, the plaintiff was not in state custody when he met Dr. Jackson, or
when Dr. Jackson prescribed the medication. The Department of Corrections
Offender Detail website supports this conclusion. It indicates that the plaintiff
was released from the Milwaukee Secure Detention Facility on extended
supervision on February 27, 2004. He did not return to state custody until
January 9, 2013, some six months after Dr. Jackson prescribed him the
medication. See http://offender.doc.state.wi.us/lop/detail.do (last visited
December 26, 2016). Because he was not in state custody when Dr. Jackson
prescribed him the medication, it is unlikely that the plaintiff was receiving the
treatment or medication through the state. And the plaintiff indicates that he
met Dr. Jackson because Dr. Jackson was his girlfriend’s son’s psychiatrist,
not because he was referred there by the state.
The facts indicate, therefore, that the plaintiff received private medical
care from Dr. Jackson and Relevance, independent of state action. As a result,
the plaintiff fails to state a federal claim under 42 U.S.C. §1983. While the
plaintiff may have state-law claims against these defendants, he has not
asserted a claim for which a federal court can grant relief, and the court must
dismiss his case.
III.

PLAINTIFF’S MOTION FOR ACCESS TO RELEASE ACCOUNT
On November 9, 2016, the plaintiff filed a motion for access to his release

account to pay for “copies, postage, [and] filling fees related to this case.” Dkt.
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No. 8. The court has screened the plaintiff’s complaint pursuant to 28 U.S.C.
§1915A, and has dismissed the complaint for failure to state a claim. Therefore,
the court will not allow the plaintiff to use his release account to pay for copies
and postage.
Regarding the remainder of his filing fee, the Prison Litigation Reform Act
requires the court to collect the filing fee from a “prisoner’s account.” 28 U.S.C.
§1915(b). The term “prisoner’s account” encompasses both a prisoner’s release
account and his general account. Spence v. McCaughtry, 46 F. Supp. 2d 861,
862 (E.D. Wis. 1999). At least one judge in this district, however, has
concluded that “given the purpose of the release account to provide funds to
the prisoner upon his or her release from incarceration, the court does not
deem it prudent to routinely focus on the release account as the initial source
of funds to satisfy the filing fee payment requirements of the PLRA.” Smith v.
Huibregtse, 151 F. Supp. 2d 1040 (E.D. Wis. 2001).
The plaintiff wants to have the remainder of the filing fee ($321.66)
deducted from his release account. The plaintiff’s trust fund account statement
shows that he has a balance of $564.04 in his release account. See Dkt. No. 5.
According to the DOC’s website, the plaintiff’s mandatory release/supervision
date is July 2052. Further, the plaintiff is expected to pay for lawsuits that he
files. Therefore, the court will allow the plaintiff to pay the remainder of his
filling fee from his release account.

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IV. CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court GRANTS the plaintiff’s motion for access to his release account
to pay the remainder of his filing fee. Dkt. No. 8. The court ORDERS that the
warden at Columbia Correctional Institution shall withdraw $321.66 from the
plaintiff’s release account and forward that sum to the Clerk of this Court as
payment for the balance of the filing fee in this action.
The court further ORDERS that this case is DISMISSED pursuant to 28
U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
The court also ORDERS the Clerk of Court to document that this inmate
has incurred a “strike” under 28 U.S.C. §1915(g).
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Fed. R. of App. P. 3, 4. This court may extend this deadline if a party timely
requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Fed. R. Civ P. 6(b)(2).
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Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2).
The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 27th day of December, 2016.

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