Freeman v. Eckstein et al
ORDER signed by Judge Pamela Pepper on 9/11/2017. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants Rebecca Lenz, Steve Schueler, Scott Eckstein, Steve Bost and John Kind DISMISSED. Defendants R osmarynoski, Martinez and Lutsey to file responsive pleading within 60 days. If plaintiff wants to file amended complaint he must do so by 10/6/2017. Agency having custody of plaintiff to collect $343.75 balance of filing fee from his prison tru st account pursuant to 28 USC §1915(b)(2). Parties may not begin discovery until after the court enters scheduling order setting discovery and dispositive motions deadlines. Case returned to Magistrate Judge David E. Jones for further proceedings. (cc: all counsel, via mail to Warden and Dwayne Freeman (with EDWI complaint form) at Green Bay Correctional Institution)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DWAYNE T. FREEMAN,
Case No. 17-cv-958-pp
STEVE BOST, and
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
(DKT. NO. 2) AND SCREENING THE AMENDED COMPLAINT (DKT. NO. 6)
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. Under
that law, the court must screen a plaintiff’s complaint to determine whether the
plaintiff states claims with which he may proceed. This case currently is
assigned to Magistrate Judge David Jones. Because all parties have not had
the opportunity to consent to magistrate judge jurisdiction, the case was
randomly referred to a district court judge for the limited purpose of screening
the complaint. The court will return the case to Magistrate Judge Jones for
further proceedings after it enters this order.
The plaintiff filed his complaint on July 11, 2017. Dkt. No. 1. Under
certain circumstances, Federal Rule of Civil Procedure 15 allows a plaintiff to
amend his complaint once without the court’s permission. The plaintiff filed an
amended complaint on July 31, 2017, dkt. no. 6; this amended complaint
replaced the plaintiff’s original complaint. In addition to filing an amended
complaint, the plaintiff filed a motion for leave to proceed without prepayment
of the filing fee. Dkt. No. 2. This decision will resolve the plaintiff’s motion and
screen the amended complaint.
Motion for Leave to Proceed without Prepayment of the Filing Fee
The PLRA allows a court to give an incarcerated plaintiff the ability to
proceed with his lawsuit without prepaying the case filing fee, as long as he
meets certain conditions. One of those conditions is that the plaintiff pay an
initial partial filing fee. 28 U.S.C. §1915(b).
On August 1, 2017, Judge Jones ordered that by August 22, 2017, the
plaintiff pay an initial partial filing fee of $6.25. Dkt. No. 9. The court received
that fee on August 14, 2017. The court will grant the plaintiff’s motion to
proceed without prepayment of the filing fee. The court will order the plaintiff to
pay the remainder of the filing fee over time in the manner explained at the end
of this decision.
Screening the Plaintiff’s Amended Complaint
The law requires the court to screen complaints, including amended
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 if the plaintiff raises 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
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. 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 gives 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
A. The Plaintiff’s Allegations
The plaintiff alleges that a large puddle of water had collected on his
tier’s floor. Dkt. No. 6 at 3. He explains that numerous inmates complained to
defendants Tonia Rosmarynoski and CO Martinez about the water, but neither
of them took any steps to clean up the water or to warn inmates about the
slippery floors. Id. at 3-4.
The plaintiff asserts that Rosmarynoski told him and others to “get out of
her face” and “lock in their cells.” Id. at 4. The plaintiff states that he complied,
but that on his way to his cell, he slipped, hit the floor hard and lost
consciousness. Id. The plaintiff states that, as he regained consciousness,
Rosmarynoski ordered him to get up and stop faking. Id. According to the
plaintiff, neither Rosmarynoski nor Martinez “initiated HSU protocol for
emergency situation[s];” instead, they continued to yell at him to get up and
stop faking. Id.
The plaintiff asserts that he laid on the floor for twenty minutes before he
was escorted to health services. Id. An unidentified nurse (who is not named as
a defendant) examined him and gave him an ice pack, some over-the-counter
medication and a low-bunk restriction. Id. at 4-5. The plaintiff states that this
was inadequate to address his pain. Id.
According to the plaintiff, he did not see a doctor for nearly one month,
even though many unidentified nurses (who are not named as defendants) saw
him during sick call. Id. The plaintiff states that he can’t walk normally, is
unable to stand up fully, and moves slowly. Id. He states that he has consistent
neck and back pain, spasms in his back, migraines and vision problems. Id.
The plaintiff asserts that an unidentified doctor (who is not named as a
defendant) observed the plaintiff’s condition, but that doctor persisted in
prescribing the plaintiff over-the-counter medication that was insufficient to
address his needs. Id. The plaintiff also asserts that defendant Jean Lutsey was
aware of the ineffectiveness of the treatment. Id.
The plaintiff states that months later, he received an MRI, but that he
still takes only Tylenol, and no one has referred him to a pain management
clinic or specialist. Id. at 6.
The plaintiff also alleges that he attends school at an off-unit location. Id.
He explains that inmates have only a few minutes to walk to and from the
school from their cell house. Id. The plaintiff asserts that, as a result of his
back injury, he walks slowly and he is not able to make the trip in the time
allotted. Id. The plaintiff states that Officers Petri and Mr. Pickering (neither of
whom are named as defendants) have failed to accommodate his disability. Id.
The plaintiff states that Petri has issued him conduct reports for being late. Id.
B. The Court’s Analysis
The court will dismiss defendant Scott Eckstein, Steven Schueler, John
Kind, Rebecca Lenz and Steve Bost. Section 1983 “creates a cause of action
based on personal liability and predicated upon fault; thus liability does not
attach unless the individual defendant caused or participated in a
constitutional violation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996).
There is no supervisory liability, collective liability or vicarious liability under
42 U.S.C. § 1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). In
other words, these defendants cannot be held liable merely because of their
positions as supervisors. To be liable, they must have been personally involved
in the violation of the plaintiff’s rights. Although the plaintiff names them in the
caption of his complaint, he does not state what they did, or what they failed to
do, to violate his rights. The plaintiff has not stated a claim against these
Prison officials violate the Eighth Amendment when they know of a
substantial risk of serious harm to inmate health or safety and they either act
or fail to act in disregard of that risk. Farmer v. Brennan, 511 U.S. 825, 832
(1994); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The court will allow the
plaintiff to proceed on a deliberate indifference claim against Rosmarynoski
and Martinez, based on his allegations that they were deliberately indifferent to
his serious medical needs after he slipped and fell. The court also will allow the
plaintiff to proceed on a deliberate indifference claim against Lutsey based on
his allegations that he complained to her that the over-the-counter medication
was inadequate to address his needs. See Greeno v. Daley, 414 F.3d 645, 655
(7th Cir. 2005).
The court will not allow the plaintiff to proceed on a federal law claim
against Rosmarynoski and Martinez based on his allegations that they knew
about the wet floor but refused to clean it up. See Watkins v. Lancor, 558
Fed.Appx. 662, 664 (7th Cir. 2014) (holding that wet floors are not a
sufficiently dangerous condition). It will, however, allow the plaintiff to proceed
against Rosmarynoski and Martinez on a state law negligence claim based on
Finally, the court will not allow the plaintiff to proceed on claims against
the unidentified nurses, the unidentified doctor, Petri or Pickering. The plaintiff
does not identify any of these individuals in the caption of his complaint as
defendants, nor does he refer to them in the section of his complaint entitled
“Parties.” Although courts are to construe a pro se plaintiff’s allegations
broadly, the court cannot name defendants for a plaintiff.
If the plaintiff wants the court to screen his proposed claims against
these individuals, he must file an amended complaint identifying them as
defendants. Amended complaints replace prior complaints. If the plaintiff
decides to file an amended complaint, that amended complaint must contain
all of the claims he wants to pursue against all of the defendants he wants to
sue. In other words, he needs to take the court’s complaint form (which the
court is enclosing with this order), put the word “Amended” in front of the word
“Complaint” on the first page, then re-state his claims against the current
defendants AND name any additional defendants, as well as explaining what
those particular defendants did, or failed to do. If the plaintiff does not know
the name of a person he wants to sue, he can refer to them as “John Doe #1,”
or “Jane Doe #1” (or #2, or #3, depending on how many Doe defendants he
names). If the plaintiff files an amended complaint, the court will screen it. If
the plaintiff wishes to proceed only on his claims again Rosmarynoski,
Martinez and Lutsey, he does not need to take any further action.
The court GRANTS the plaintiff's motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2.
The court DISMISSES defendants Scott Eckstein, Steven Schueler, John
Kind, Rebecca Lenz and Steve Bost.
The court ORDERS, under an informal service agreement between the
Wisconsin Department of Justice and this court, the clerk’s office to
electronically send copies of the plaintiff’s complaint and this order to the
Wisconsin Department of Justice for service on defendants Tonia
Rosmarynoski, CO Martinez and Jean Lutsey.
The court further ORDERS, under the informal service agreement
between the Wisconsin Department of Justice and this court, defendants Tonia
Rosmarynoski, CO Martinez and Jean Lutsey to file a responsive pleading to
the complaint within sixty (60) days of receiving electronic notice of this order.
The court ORDERS that, if the plaintiff wants to file an amended
complaint, he must do so in time for the court to receive it by October 6,
The court further ORDERS that the agency having custody of the
plaintiff shall collect from his institution trust account the $343.75 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 agency shall clearly identified the payments by the case name
and number. If the plaintiff is transferred to another institution, county, state,
or federal, the transferring institution shall forward a copy of this order along
with plaintiff's remaining balance to the receiving institution.
The court will mail a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
The court further ORDERS that, under 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.1 If the plaintiff no longer is
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
The court further advises the plaintiff that if he does not timely file
pleadings or other documents by the deadlines the court sets, it may result in
the dismissal of his case for failure to prosecute. The parties must notify the
Clerk of Court of any change of address. Failure to do so could result in orders
The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
or other information not being timely delivered, thus affecting the legal rights of
The court RETURNS this case to Magistrate Judge David Jones for
Dated in Milwaukee, Wisconsin this 11th day of September, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
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