Ford v. Rice et al

Filing 8

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. THEREFORE, IT IS ORDERED that plaintiff's motion to proceed without prepayment of the filing fee (Docket # 2) is GRANTED. (cc: all counsel, plaintiff, Warden) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL J. FORD,
Plaintiff,
v.

Case No. 17-CV-32

CO RICE and CO WRIGHT,
Defendants.
DECISION AND ORDER SCREENING PLAINTIFF’S COMPLAINT
Plaintiff, a Wisconsin state prisoner who is representing himself, filed a civil rights
complaint under 42 U.S.C. §1983. This matter is before me on plaintiff’s motion to proceed
without prepayment of the filing fee (Docket # 2) and for screening of his complaint
(Docket # 1).
PLAINTIFF’S MOTION TO PROCEED WITHOUT
PREPAYMENT OF FILING FEE
The Prison Litigation Reform Act gives courts discretion to allow prisoners to
proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply
with certain requirements. 28 U.S.C. §1915. One of those requirements is that the prisoner
pay an initial partial filing fee. On January 11, 2017, I ordered plaintiff to pay an initial
partial filing fee of $3.14. Plaintiff paid that fee on January 23, 2017. As such, I will grant
plaintiff’s motion to proceed without prepayment of the full filing fee; he must pay the
remainder of the filing fee over time as set forth at the end of this order.

SCREENING OF PLAINTIFF’S COMPLAINT
Federal law requires that I 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). I 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 claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows a court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To proceed 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 defendant was
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). I will give a pro se plaintiff’s
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)).
ALLEGATIONS IN THE COMPLAINT
Plaintiff alleges that on September 22, 2016, he received a memorandum informing
him that he was being placed on a “Keep on Person” (KOP) medication restriction as a
safety precaution because he had overdosed on his medication earlier that month. The next
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day, defendant CO Wright distributed medication to plaintiff even though he knew plaintiff
was prohibited from possessing the medication because of his previous overdose.
On October 8, 2016, plaintiff began to feel suicidal. He contacted the sergeant station
via his emergency call button and informed the sergeant (who is not named as a defendant)
that he was going to take the pills he had been given by staff. Defendant CO Rice
approached plaintiff’s cell, and, through the cell window, plaintiff showed Rice the twenty
pills Wright had given him. According to plaintiff, Rice asked “What are you doing?” and
then stood and watched as plaintiff ingested all of the pills.
Plaintiff was rushed to the hospital where he received treatment. Plaintiff alleges that
the medication ate through the lining of his stomach and that, as a result, he has to be on
long-term medication.
ANALYSIS
To state an Eighth Amendment claim based on deficient medical care, a plaintiff
must demonstrate two elements: 1) an objectively serious medical or mental health
condition; and 2) an official’s deliberate indifference to that condition. Arnett v. Webster, 658
F.3d 742, 750 (7th Cir. 2011) (citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)).
Plaintiff alleges that defendant Wright demonstrated deliberate indifference when he
provided him with medication despite knowing that plaintiff had recently overdosed and
was prohibited from possessing medication. Plaintiff also alleges that Rice demonstrated
deliberate indifference when he failed to intervene to stop plaintiff from ingesting twenty
pills. I find that these allegations are sufficient for plaintiff to proceed on deliberate
indifference claims against these defendants.

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THEREFORE, IT IS ORDERED that plaintiff’s motion to proceed without
prepayment of the filing fee (Docket # 2) is GRANTED.
IT IS ALSO ORDERED that the warden of the institution where plaintiff is
confined, or his designee, shall collect from plaintiff’s prisoner trust account the $346.86
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). Payments shall be clearly
identified by case name and number.
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 are being electronically sent today to the Wisconsin Department of Justice for
service on CO Rice and CO Wright.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this court, defendants CO Rice and CO Wright
shall file a responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
IT IS ALSO ORDERED that the parties may not begin discovery until after the
court enters a scheduling order setting deadlines for discovery and dispositive motions.
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
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Institution, and Wisconsin Secure Program Facility and, therefore, if 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.
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the matter. As each filing will be electronically scanned
and entered on the docket upon receipt by the clerk, plaintiff need not mail copies to the
defendants. All defendants will be served electronically through the court’s electronic case
filing system. Plaintiff should also retain a personal copy of each document filed with the
court.
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 2nd day of February, 2017.
BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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