Owens v. Racine County Jail

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 3/10/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. By 3/31/2017, plaintiff to file amended pleading curing deficiencies in original complaint. Sheriff to collect balance of filing fee from plaintiff's prison trust account. See Order. (cc: all counsel, via mail to Nathaniel Gerrod Owens and Sheriff at Racine County Jail) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NATHANIEL GERROD OWENS,
Plaintiff,
v.

Case No. 17-CV-195-JPS

RACINE COUNTY JAIL,
Defendant.

ORDER

The plaintiff, who is incarcerated at Racine County Jail (the “Jail”),
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the Court on the
plaintiff's motion to proceed in forma pauperis. (Docket #2). It was determined
that the plaintiff was not required to pay an initial partial filing fee. (Docket
#5).
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); 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 Atl. 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
complaint 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

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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. Vill. of N. 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)).
The plaintiff alleges that on January 24, 2017, he slipped and fell on a
wet floor in the dayroom of the Jail. (Docket #1 at 2). Some correctional
officers and a nurse took the plaintiff back to his cell in a wheelchair because
he complained of back, neck, and rib pain. Id. at 2-3. He was not taken to the
hospital or allowed to see a doctor. Id. at 3. The plaintiff alleges that he is
“seeking damages from the Racine County Jail for me falling, the nurse
practetioner [sic] for denieing [sic] me a doctor, and also the two nurse[s] that
worked 2nd and 3rd shift for refusing me treatment.” Id.
The plaintiff fails to state a viable claim for relief. He attempts to
assert a claim for constitutional injury under 42 U.S.C. § 1983, but does not
identify any constitutional provision which he believes was violated. See
generally (Docket #1). With regard to his complaint about the wet floor in the
Jail, the Seventh Circuit holds that,

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[t]o prevail on a constitutional claim that he was injured by the
conditions of his confinement, a plaintiff must show that jail
officials were aware of a substantial risk of serious injury but
nevertheless failed to take appropriate steps to protect him.
Negligence or even gross negligence on the part of officials is
not sufficient for liability; their actions must be intentional or
criminally reckless.
Bell v. Ward, 88 Fed.Appx. 125, 127 (7th Cir. 2004) (citations and quotations
omitted). Unfortunately for the plaintiff, “[f]ederal courts consistently have
adopted the view that slippery surfaces and shower floors in prisons, without
more, cannot constitute a hazardous condition of confinement.” Pyles v.
Fahim, 771 F.3d 403, 410, n.25 (7th Cir. 2014); Bell, 88 Fed.Appx. at 127. The
Bell court held that the wet floor Bell complained of “did not present a
substantial risk of serious injury. Although wet floors do present a possibility
that inmates might slip, Bell’s allegations do not suggest a substantial risk of
serious harm that reflects the deliberate indifference required to impose
liability under the Eighth Amendment.” Bell, 88 Fed.Appx. at 127. A typical
negligence claim such as this does not automatically become a constitutional
injury just because it occurs in a prison. See Watkins v. Lancor, 558 Fed.Appx.
662, 665 (7th Cir. 2014).1
As to the plaintiff’s claim of deficient medical treatment, his potential
constitutional recourse lies in the Eighth Amendment. The Gayton case
outlines the elements of the claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants knew
of the condition and were deliberately indifferent to treating
[him]; and (3) this indifference caused [him] some injury. An

1

The plaintiff also has not named the proper parties for this claim. The Jail is not a
suable entity. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012).

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objectively serious medical condition is one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need
for a doctor’s attention. A medical condition need not be
life-threatening to be serious; rather, it could be a condition
that would result in further significant injury or unnecessary
and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This inquiry 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.
Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, “deliberate indifference”
is simply a synonym for intentional or reckless conduct, and
that “reckless” describes conduct so dangerous that the
deliberate nature of the defendant’s actions can be inferred.
Simply put, an official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the harm
ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted). The plaintiff’s brief and conclusory allegations fall well short of
stating a claim for deliberate indifference to his medical needs. He states that
he was “hurting” but, in light of the above-cited standards on the wet floor
issue, simply experiencing pain from a fall is not a serous medical condition.
Further, it appears he received some medical attention but that he simply
wanted more; however, “mere disagreement with the course of the inmate’s
medical treatment does not constitute an Eighth Amendment claim of
deliberate indifference.” Snipes v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996)
(quotation omitted). None of the plaintiff’s allegations support an inference

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that any of the nurses knew he had a serious medical condition and
deliberately ignored that fact. Finally, relevant actors are not named as
defendants, even in a John/Jane Doe capacity.
In sum, the plaintiff has not stated any actionable claims. Nevertheless,
the Court will allow the plaintiff to amend his complaint. If he wants to
proceed, he must file an amended complaint curing the deficiencies in the
original complaint as described herein. The amended complaint must be filed
on or before March 31, 2017. Failure to file an amended complaint within this
time period may result in dismissal of this action. The plaintiff is advised that
the amended complaint must bear the docket number assigned to this case
and must be labeled “Amended Complaint.” The plaintiff is further advised
that a successful complaint alleges “the who, what, when, where, and how:
the first paragraph of any newspaper story.” See DiLeo v. Ernst & Young, 901
F.2d 624, 627 (7th Cir. 1990).
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v. Bd.
of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, the Seventh Circuit emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all matters not restated in the
amended pleading[.]” Id. at 1057 (citation omitted); see also Pintado v. MiamiDade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general
matter, ‘[a]n amended pleading supersedes the former pleading; the original
pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210,

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1215 (11th Cir. 2006)). If an amended complaint is received, it will be screened
pursuant to 28 U.S.C. § 1915A.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed
in forma pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that on or before March 31, 2017, the
plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
IT IS FURTHER ORDERED that the Racine County Sheriff or his
designee shall collect from the plaintiff’s prisoner trust account the 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 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
sheriff of the institution where the inmate is confined; and
IT IS FURTHER ORDERED that the plaintiff shall 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; doing so will only delay the processing of this matter.

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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 10th day of March, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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