Robbins v. Schettle et al

Filing 7

SCREENING ORDER signed by Judge Lynn Adelman on 10/13/16 granting 4 Motion for Leave to Proceed Without Prepayment of the Filing Fee. Further ordering that defendant Scarpita is DISMISSED. A copy of plaintiffs complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the state defendant and the defendant shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from plaintiffs prison trust account the $328.84 balance of the filing fee as set forth herein. (cc: all counsel, via USPS to plaintiff, Warden) (dm) Modified on 10/13/2016 (dm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHANE T. ROBBINS,
Plaintiff,
v.

Case No. 16-CV-1127

JOHN SCHETTLE and ANN SCARPITA,
Defendants.

SCREENING ORDER

The plaintiff, Shane T. Robbins, who is incarcerated at Waupun Correctional
Institution, is representing himself. He filed a complaint alleging that the defendants
violated his constitutional rights.

This matter comes before the court on plaintiff’s

petition to proceed without prepayment of the filing fee (in forma pauperis). He has been
assessed and paid an initial partial filing fee of $21.16. See 28 U.S.C. § 1915(b)(1).
The court shall 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 mere “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).

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’s 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
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679. Legal conclusions must be supported by factual allegations. Id. If there are wellpleaded 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)).
Plaintiff alleges that defendant Dr. Schettle removed his gum tissue without
numbing his mouth, causing him great pain. According to plaintiff, when Dr. Schettle
began to grind away at his teeth without Novocain, his assistant saw plaintiff shaking
frantically in pain and asked Dr. Schettle, “what are you doing? He hasn’t been
numbed.” (Docket # 1-1 at 1.) Dr. Schettle allegedly responded, “He’ll be fine,” and
continued grinding. (Id.) Plaintiff alleges that he felt like he was being electrified.
Plaintiff also alleges that he tried to obtain statements regarding the incident, but
was unable to do so.

His mail was sent to defendant Health Service Manager Ann

Scarpita. Plaintiff has reviewed his medical records, but cannot find anything from that
dental visit.

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Plaintiff claims that the “evil act of removing gum tissue without numbing” violated
his rights under the Eighth Amendment.

(Docket # 1 at 2.)

For relief, he seeks

compensatory and punitive damages. Plaintiff also seeks declaratory relief. He further
seeks a preliminary and permanent injunction ordering Dr. Schettle to lose his license
and to pay for plaintiff’s upper and lower implants by a professional outside of the
prison.
The court finds that the plaintiff may proceed on an Eighth Amendment claim
against Dr. Schettle. See McGowan v. Hulick, 612 F.3d 636, 641 (7th Cir. 2010) (citing
Estelle v. Gamble, 429 U.S. 97, 104 n.10 (1976); Johnson v. Doughty, 433 F.3d 1001,
1018-19 (7th Cir. 2006)).

However, plaintiff may not proceed against defendant

Scarpita because she is not alleged to have been personally involved in the incident.
Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009).
Preliminary Injunction
As stated above, plaintiff seeks a preliminary injunction ordering Dr. Schettle to
lose his license and to pay for dental implants for plaintiff.

To obtain preliminary

injunctive relief, the plaintiff must show that (1) his underlying case has some likelihood
of success on the merits, (2) no adequate remedy at law exists, and (3) he will suffer
irreparable harm without the injunction. Wood v. Buss, 496 F.3d 620, 622 (7th Cir.
2007). If those three factors are shown, the court must then balance the harm to each
party and to the public interest from granting or denying the injunction. Id.; Korte v.
Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar, 196 F.3d 809, 813 (7th
Cir. 1999).

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Here, plaintiff has not demonstrated a sufficient likelihood of success on the
merits at this early stage.

Moreover, plaintiff has not shown that he will suffer

irreparable harm without the injunction. Accordingly, I will deny plaintiff’s request for a
preliminary injunction.
ORDER
IT IS THEREFORE ORDERED that plaintiff's motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket # 2) is GRANTED.
IT IS FURTHER ORDERED that defendant Scarpita is DISMISSED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, a copy of plaintiff’s
complaint and this order are being electronically sent today to the Wisconsin
Department of Justice for service on the state defendant.
IT IS ALSO ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, the defendant 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 plaintiff’s prison trust account the $328.84
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

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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
Waupun Correctional Institution.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program,
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
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 13th day of October, 2016.
BY THE COURT:
s/ Lynn Adelman
______________________________
LYNN ADELMAN
United States District Judge
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