Carter v. Vanburen et al

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 2/1/2017 GRANTING 2 , 6 Plaintiff's Motions for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff's Complaint and this Order to be electronically sent to Wisconsin DOJ for service on Defendants. Defendants to file responsive pleading within 60 days. Wisconsin DOC to collect balance of filing fee. See Order. (cc: all counsel, via mail to Tommie L. Carter and Warden at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TOMMIE L. CARTER,
Plaintiff,

Case No. 16-CV-1676-JPS

v.
TORRIA VANBUREN and DEREK
SCHOUTEN,

ORDER
Defendants.
Plaintiff filed a pro se complaint under 42 U.S.C. § 1983 alleging that his
civil rights were violated while he was incarcerated at Waupun Correctional
Institution (“Waupun”). (Docket #1). This matter comes before the Court on
Plaintiff’s motions to proceed in forma pauperis. (Docket #2 and #6). The Court
has waived Plaintiff’s initial partial filing fee because of his inability to pay
such a fee. (Docket #9).
Under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A,
the Court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental
entity. Id. § 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. Id. § 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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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 allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citation omitted); Christopher, 384
F.3d at 881.
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
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factual allegations. Id. If there are well-pleaded factual allegations, the Court
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, the 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. Cnty. 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 on November 4, 2015, he informed Defendants
that he was suicidal and that he “was going to engage in self-harm on the
third shift.” (Docket #1 at 1). Defendant Van Buren is a psychologist at
Waupun, while Defendant Schouten is a correctional officer. Id. Although he
does not say what their response was, the Court is left to assume that
Defendants ignored Plaintiff’s statement. See id. That night, Plaintiff
attempted suicide by cutting his arms and legs, and by overdosing on
acetaminophen pills. Id. at 2. Correctional officers found him in his cell,
unconscious and bleeding. Id. He was taken to the hospital and treated. Id.
Plaintiff asserts that Defendants violated the Eighth Amendment when they
failed to prevent him from attempting suicide. Id. at 3. He further claims that
their failure to respond to his suicide threats is one instance among a pattern
of such conduct by officials at the prison. Id. Plaintiff seeks monetary and
injunctive relief. Id. at 3–4.
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Plaintiff may proceed on an Eighth Amendment claim for Defendants’
deliberate indifference to his serious medical needs—in particular, their
allegedly inadequate response to his repeated suicidal statements. To state
a claim of deliberate indifference to a serious medical need, the plaintiff must
show: (1) an objectively serious medical condition; (2) that the defendants
knew of the condition and were deliberately indifferent in treating it; and (3)
this indifference caused the plaintiff some injury. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010). The deliberate indifference inquiry here, like that
applicable to conditions of confinement, has two components. “The official
must have subjective knowledge of the risk to the inmate’s health, and the
official also must disregard that risk.” Id. Even if an official is aware of the
risk to the inmate’s health, “he is free from liability if he ‘responded
reasonably to the risk, even if the harm ultimately was not averted.’” Id.
(quoting Farmer, 511 U.S. at 843). Negligence cannot support a claim of
deliberate indifference, nor is medical malpractice a constitutional violation.
Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v. Elyea, 631 F.3d 843, 857
(7th Cir. 2011). Construing Plaintiff’s allegations liberally, the Court finds that
Plaintiff should be permitted to proceed on this claim. See Estate of Novack ex
rel. Turbin v. Cnty. of Wood, 226 F.3d 525, 529 (7th Cir. 2000) (“In order to be
liable under the Eighth Amendment, a prison official must be cognizant of
the significant likelihood that an inmate may imminently seek to take his own
life and must fail to take reasonable steps to prevent the inmate from
performing this act.”). It may be that Defendants responded adequately to
Plaintiff’s threat of suicide, but, given the low bar applied at the screening
stage, the Court finds it appropriate to let this claim proceed.
For the reasons stated above, the Court finds that Plaintiff may
proceed on the following claim: an Eighth Amendment claim of deliberate
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indifference to his serious medical need arising from Plaintiff’s threat of
suicide and suicide attempt on November 4, 2015.
Accordingly,
IT IS ORDERED that Plaintiff’s motions for leave to proceed in forma
pauperis (Docket #2 and #6) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s complaint and this order will be electronically sent to the
Wisconsin Department of Justice for service on Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants shall file a responsive pleading to the complaint within sixty (60)
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 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 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 FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined; and
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
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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 Plaintiff is no longer
incarcerated any of these 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 1st day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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