Antepenko v. Domrois et al

Filing 9

ORDER signed by Judge Pamela Pepper on 10/26/2017. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee filed GRANTED. Defendants Dawn Fofana, Danielle Foster, M. Lee, Lee Becher and Richard Bubolz DISMISSED. Defen dant Domrois to file responsive pleading within 60 days. Agency having custody of plaintiff to collect $342.48 balance of filing fee from his prison trust account under 28 USC §1915(b)(2). Parties shall not begin discovery until after the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to William Antepenko and Warden at Oshkosh Correctional Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
WILLIAM T. ANTEPENKO, JR.,
Plaintiff,
v.

Case No. 17-cv-1211-pp

DR. DOMROIS,
RICHARD BUBOLZ,
LEE BECHER,
DANIELLE FOSTER,
DAWN FOFANA, and
M. LEE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
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 the plaintiff’s complaint to determine whether
the plaintiff states claims with which he may proceed. In addition to filing a
complaint, the plaintiff filed a motion for leave to proceed without prepayment
of the filing fee. Dkt. No. 2. This decision screens the complaint and resolves
the plaintiff’s motion.
I.

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 must pay
an initial partial filing fee. 28 U.S.C. §1915(b).
On September 12, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $7.52 by October 2, 2017. Dkt. No. 6. The plaintiff paid the
fee on September 27, 2017. The court will grant the plaintiff’s motion to
proceed without prepayment of the filing fee, and will order the plaintiff to pay
the remainder of the filing fee over time in the manner explained at the end of
this decision.
II.

Screening the Plaintiff’s Complaint
The law requires the court 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
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 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;
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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). 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
(1976)).
A.

The Plaintiff’s Allegations

The plaintiff explains that his dentures do not fit properly. Dkt. No. 1 at
4. As a result, they sometimes fall out of his mouth while he’s talking, cause
pain and sore spots, and prevent him from eating certain foods. Id. at 4-5. He
states that he needs a soft liner and Fixodent to help them stay in his mouth,
but that he cannot afford to buy Fixodent at the canteen. Id. at 4.
According to the plaintiff, he has informed defendant Dr. Domrois on
numerous occasions that his dentures do not fit. Id. Domrois allegedly has
tried two times to fix the dentures, which were made for the plaintiff by an
outside provider, but the dentures still do not fit. Id. The plaintiff states that
Domrois refuses to get new dentures for the plaintiff; he has told the plaintiff
that the problem is with his gum line. Id. at 4-5.
The plaintiff also states that Domrois will not provide him with a
prescription for Fixodent to help the dentures fit better. Id. Domrois allegedly
told the plaintiff that he could apply for a medical loan, but the health services
staff told the plaintiff that he could not use a medical loan to buy Fixodent. Id.
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Regardless, it appears that the plaintiff no longer wishes to use Fixodent to
help his dentures fit better; he explains that he recently learned that excessive
use of Fixodent, which contains Zinc, can lead to serious health problems. Id.
at 5-6.
The plaintiff filed an inmate complaint, which was investigated by
defendant Richard Bubolz. Id. at 3-4. Bubolz reviewed the plaintiff’s banking
information and spoke to defendants Danielle Foster, Dawn Fofana and M. Lee.
Id. at 4. According to the plaintiff, in deciding to dismiss the plaintiff’s
complaint, Bubolz concluded, “This office has no reason to believe the care,
treatment, and responses offered are not adequate to the demonstrated need.”
Id. at 5. Becher concurred with Bubolz’s decision.
B.

The Court’s Analysis

Prison officials violate the Eighth Amendment's proscription against cruel
and unusual punishment when their conduct demonstrates 'deliberate
indifference to serious medical needs of prisoners.'" Gutierrez v. Peters, 111
F.3d 1364, 1369 (7th Cir. 1997). This standard contains both an objective
element (that the medical needs be sufficiently serious) and a subjective
element (that the officials act with a sufficiently culpable state of mind). Id. The
court will allow the plaintiff to proceed on a deliberate indifference claim
against Domrois based on his allegations that Domrois failed to address the
plaintiff’s repeated complaints that his dentures do not fit and are causing him
pain.

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The court will dismiss the remaining defendants. Under §1983, only
prison officials who are personally responsible for a constitutional violation can
be liable. Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). In other
words, in order for a plaintiff to state a claim against a defendant, that
individual defendant must have caused or participated in a constitutional
violation. Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014,
1039 (7th Cir. 2003).
With regard Bubolz and Becher, the plaintiff alleges that Bubolz
dismissed his inmate grievance after investigating the plaintiff’s claims and
that Becher agreed with the dismissal. “Ruling against a prisoner on an
administrative complaint does not cause or contribute to the [constitutional]
violation.” George v. Smith, 507 F.3d 605, 609–10 (7th Cir.2007). Similarly, the
plaintiff asserts that Bubolz interviewed Foster, Fofana and Lee in the course of
his investigation, but the mere fact that Bubolz spoke to them is not enough for
the court to infer that they were personally involved in the alleged violation of
the plaintiff’s rights.
III.

Conclusion
The court GRANTS the plaintiff's motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court DISMISSES Richard Bubolz, Lee Becher, Danielle Foster,
Dawn Fofana and M. Lee as defendants.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS, the clerk’s office to electronically
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send copies of the plaintiff’s complaint and this order to the Wisconsin
Department of Justice for service on defendant Dr. Domrois.
Under the informal service agreement between the Wisconsin
Department of Justice and this court, the court ORDERS defendant Dr.
Domrois to file a responsive pleading to the complaint within sixty days of
receiving electronic notice of this order.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $342.48 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 identify 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 shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
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who will scan and e-mail documents to the court.1 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
The court further advises the plaintiff that if he does not file his
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
or other information not being timely delivered, thus affecting the legal rights of
the parties.
Dated in Milwaukee, Wisconsin this 26th day of October, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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.
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