Frutiger v. Wisconsin Department of Corrections et al

Filing 7

SCREENING ORDER signed by Chief Judge William C Griesbach on 8/31/2017. Defendants Kettle Moraine Correctional Institution and Wisconsin Department of Corrections terminated are DISMISSED and 2 MOTION for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. (cc: all counsel, via US Mail to Plaintiff and Warden)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JAMES FRUTIGER,
Plaintiff,
v.

Case No. 17-C-1114

WISCONSIN DEPARTMENT OF CORRECTIONS, et al.,
Defendants.

SCREENING ORDER

Plaintiff James Frutiger, who is incarcerated at Kettle Moraine Correctional Institution, filed
a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter
comes before the court on the plaintiff’s petition for leave to proceed without prepaying the full filing
fee.
Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Plaintiff has filed a certified copy of his prison trust account statement
for the six-month period immediately preceding the filing fee of his complaint, as required under 28
U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $23.10. Plaintiff’s
motion to proceed in forma pauperis will be granted.
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); Hutchinson ex rel. Baker v.
Spink, 126 F.3d 895, 900 (7th Cir. 1997).
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). The complaint must contain sufficient factual matter “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The court accepts
the factual allegations as true and liberally construes them in the plaintiff’s favor. Turley v. Rednour,
729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).
The complaint alleges that Frutiger first put in a health service request (HSR) on July 12,
2016 regarding what was eventually determined to be sores from an allergic reaction to an unknown
source. Dr. William Kelley prescribed hydrocortizone and menphor lotion to treat the rash, which
allegedly did not work. Frutiger claims the rash was so severe that he was scratching himself to the
point of drawing blood. He continued to submit HSRs and received other ointments and lotions to
treat the rash—which he claims continued to provide no relief. By December 12, 2016, the rash and
sores allegedly spread to his legs, feet, back, and buttocks. Dr. Kelley allegedly talked with Frutiger
on December 13, 2016 about a skin biopsy or being seen by a dermatologist, but Dr. Weber
seemingly suggested no ongoing treatment for the rash. Dr. Weber alleged discontinued all
treatments for the rash on December 16, 2016. Frutiger claims he wrote to Health Services Manager
William McCreedy on January 14, 2017 asking if he could get a skin biopsy or see a dermatologist,
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but that McCreedy “responded by saying my treatment was finished and if anything worsens I should
submit an HSR to be seen by the HSU staff for a sick call.” Dr. Kelley renewed all of the
medications discontinued by Dr. Weber on April 19, 2017, but allegedly told Frutiger that he needed
to stop asking questions, that he was “milking the system,” and called Frutiger a “sass ass.” Frutiger
continued to submit HSRs and inmate complaints through July 2, 2017 based on his complaints that
none of the treatment he received provided relief.
It is well-established that deliberate indifference to the serious medical needs of a person held
in custody violates his or her constitutional rights. Estelle v. Gamble, 429 U.S. 97, 104 (1976);
Jackson v. Ill. Medi-Car, Inc., 300 F.3d 760, 764 (7th Cir. 2002). To establish liability, a prisoner
must show (1) that his medical need was objectively serious; and (2) that the official acted with
deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan, 511 U.S. 825, 834
(1994). A serious medical need is “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would recognize the necessity for a
doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001). Deliberate indifference
requires more than negligence; it requires that the official know of, yet disregard, an excessive risk
to the inmate's health or safety. Farmer, 511 U.S. at 835, 837. Subjective knowledge of the risk
is required: "[A]n official’s failure to alleviate a significant risk that he should have perceived but
did not, while no cause for commendation, cannot under our cases be condemned as the infliction
of punishment." Id. at 838. At this stage of the proceedings, Frutiger has stated an Eighth
Amendment claim. Based on the facts stated above, I cannot say that Frutiger’s medical condition
does not constitute a serious medical need or that prison officials did not demonstrate deliberate
indifference to his condition.
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To recover under § 1983 a plaintiff must establish that a defendant was personally responsible
for the deprivation of a constitutional right. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
An official satisfies the personal responsibility requirement of § 1983 if the conduct causing the
constitutional deprivation occurs at his direction or with his knowledge and consent. Id. At this
stage of the litigation, Frutiger may proceed against McCreedy, Dr. Kelley, and Dr. Weber based
upon Frutiger’s allegation that they knew of his injury yet did nothing or failed to provide adequate
treatment. However, Frutiger’s complaint does not clearly allege a claim against either the
Wisconsin Department of Corrections or Kettle Moraine Correctional Institution and those
defendants will be dismissed.
IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma
pauperis be and hereby is GRANTED.
IT IS FURTHER ORDERED that defendants Wisconsin Department of Corrections and
Kettle Moraine Correctional Institution will be DISMISSED.
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 ALSO 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 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 the plaintiff's prison trust account the $326.90 balance
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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 the 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 ALSO ORDERED that copies of this order be sent to the warden of the institution
where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal
material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court - WIED
United States Courthouse
125 S. Jefferson St., Suite 102
Green Bay, Wisconsin 54301

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Plaintiff is hereby notified that copies of future documents filed with the court that can be
scanned and electronically filed need not be served on the other parties. Copies of documents that
the clerk advises cannot be electronically scanned, however, must be provided to the opposing
parties or their attorney pursuant to Fed. R. Civ. P. 5(a). Plaintiff should also retain a personal copy
of each document.
The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
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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 this 31st day of August, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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