Bonner v. Rozmarynoski et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 6/14/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Plaintiff PERMITTED to proceed on claim of deliberate indifference to Plaintiff's serious medi cal need in violation of the Eighth Amendment. Copies of Plaintiff's Complaint and this Order to be electronically sent to the Wisconsin DOJ for service on Defendants, who shall file responsive pleading within 60 days. Agency having custody of Plaintiff to collect balance of filing fee from his prison trust account. See Order for further details. (cc: all counsel, via mail to Paul Bonner and Warden at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PAUL BONNER,
Plaintiff,

v.

SGT. ROZMARYNOSKI, SGT.
COLLINS, and JOHN and JANE
DOES,

Case No. 17-CV-674-JPS

ORDER

Defendants.
Plaintiff Paul Bonner, who is incarcerated at the Wisconsin Secure
Program Facility, proceeds in this matter pro se. He filed a complaint
alleging that the defendants violated his constitutional rights. (Docket #1).
This matter comes before the court on Plaintiff’s petition to proceed without
prepayment of the filing fee (in forma pauperis). (Docket #2). Plaintiff has
been assessed and paid an initial partial filing fee of $2.44. See 28 U.S.C. §
1915(b)(1).
The court shall screen complaints brought by prisoners seeking relief
against a governmental entity or an 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.
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); 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, 110910 (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 Atl. 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 679. Legal conclusions must be
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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. Section 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 presents two claims from his time spent in Green Bay
Correctional Institution. The first arose in November 2016. Plaintiff states
that he suffers from migraine headaches as a result of a severe skull injury.
(Docket #1 at 1). On November 20, Plaintiff complained to Defendant Sgt.
Rozmarynoski (“Rozmarynoski”) that he was having such a headache. Id.
Rozmarynoski contacted the Health Services Unit (“HSU”), namely nurse
Jane Doe (“Nurse Doe #1”). Rozmarynoski told Nurse Doe #1 that Plaintiff
had no signs of severe pain and had walked to the cafeteria and back. Id.
Nurse Doe #1 decided that she did not need to see Plaintiff immediately,
and that he should instead submit a standard request for medical services.
Id. Plaintiff later told Rozmarynoski that he was having severe pain and
blacked out, but the sergeant refused to call the nurse. Id. at 2. Two days
later, Plaintiff was seen by HSU and received treatment. Id.

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Plaintiff’s second claim arose on December 16, 2016. He contacted
Defendant Sgt. John Doe (“Sgt. Doe”) about his headaches, requesting an
injection which had been prescribed to treat them. Id. Sgt. Doe told Plaintiff
to submit a written request for medical attention. Id. Later, Plaintiff told
Defendant Sgt. Collins (“Collins”), who was working on the next shift, that
he was in pain and needed the injection. Id. Plaintiff waited for Collins to
contact a nurse. Id. When Plaintiff checked in later, however, Collins said
she forgot to call a nurse. Id. On the next shift, Plaintiff again requested
medical attention via the on-duty sergeant. Id. That sergeant (not a
defendant) told Plaintiff that another Jane Doe nurse (“Nurse Doe #2) was
apparently contacted and did not think Plaintiff’s pain was serious. The
sergeant reiterated that Plaintiff should submit a written medical services
request. At some point, Plaintiff eventually received the injection he
desired. Id.
Given the exceedingly low pleading bar at the screening stage,
Plaintiff may proceed on his claims under the Eighth Amendment. The
Eighth Amendment imposes liability on state officials when they are
deliberately indifferent to the serious medical needs of inmates. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). 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 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

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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. Whether a
medical condition is “serious” and whether a defendant was
“deliberately indifferent” to it are fact questions, to be
resolved by a jury if a plaintiff provides enough evidence to
survive summary judgment.
Id. (citations and quotations omitted). Plaintiff’s allegations state that each
Defendant knew that Plaintiff was in substantial pain, and delay in pain
treatment can qualify as a “serious medical condition.” Berry v. Peterman,
604 F.3d 435, 441 (7th Cir. 2010). The allegations further establish that
Defendants either did nothing about it or discounted the pain without
actually evaluating Plaintiff. Finally, the exhibits to the complaint suggest
that the second claim arose from a lack of Plaintiff’s medication at the
prison. (Docket #1-1 at 9-10). Whether this was, in itself, the result of the
deliberate indifference of any Defendant, that issue will be sorted out in this
litigation.

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In sum, the court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Defendants’ deliberate indifference
to Plaintiff’s serious medical need, in violation of the Eighth Amendment,
as related to pain treatment for his migraine headaches in November and
December 2016.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed
without prepayment of the filing fee (in forma pauperis) (Docket #2) 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 are being electronically sent
today to the Wisconsin Department of Justice for service on the state
defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this court, the
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 agency having custody of the
prisoner shall collect from his institution 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. If the
plaintiff is transferred to another institution, county, state, or federal, the
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transferring institution shall forward a copy of this Order along with
plaintiff's remaining balance to the receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined;
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, the plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. If the
plaintiff is no longer incarcerated at a Prisoner E-Filing institution, 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.
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 14th day of June, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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