Pliska v. Shawano County Jail et al

Filing 16

SCREENING ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that on or before March 30, 2018, the plaintiff shall file a third amended complaint as described in this order. (cc: all counsel, plaintiff w/ complaint form)(asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JACOB M. PLISKA,
Plaintiff,
v.

Case No. 17-CV-1293

SHAWANO COUNTY JAIL,
MD KEN ANOLIGO,
CO PATTI,
CHRIS REKOSKE,
TYLOR RICH, AND
ODESSO CLAY,
Defendants.

SCREENING ORDER
Jacob M. Pliska, who is representing himself, is confined at the Shawano County
Jail. This matter is before me to screen the second amended complaint.
Standard of Review for Screening Second Amended Complaint
The Court shall 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).
To state a cognizable claim under the federal notice pleading system, Pliska 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). Pliska need not 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 Atlantic 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 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.
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 Pliska’s pro se allegations, “however
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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)).
Second Amended Complaint’s Allegations
On June 2, 2017, Pliska was “on the run” when around 10:30, defendant Chris
Rekoske and two other Shawano deputies dispatched to an “em1 situation.” (ECF No. 15 at
2.) During a struggle to get handcuffs on his wrist, Pliska began to have a seizure when the
deputy decentralized him. Later, a deputy put a shoe in Pliska’s mouth to protect his head
from the ground.
On June 18, 2017, while at the Shawano County Jail, Pliska had another inmate hit
the emergency intercom for him. Jail staff had placed Pliska in a receiving cell to be
monitored with a roll of toilet paper contaminated with someone else’s blood. Pliska
struggled to hit the button but then he fell and could not move or talk. He laid in a puddle of
drool and urine for close to an hour before he received new linen.
On June 19, 2017, Pliska asked for a new roll of “TP” from defendant CO Patti. She
gave him a new roll, but only after he asked again.
On June 21, 2017, Pliska had a seizure while in the C pod. Jail staff told him to stop
“faking.” Pliska was not placed in a receiving cell or in the restraint chair.
On August 27, 2017, defendant Nurse Tylor Rich denied Pliska his medication
because Pliska wrote him a note revoking “HSC” ability to carry any information from a
clinic.
Pliska seeks monetary damages from the trauma suffered due to the defendants’
actions.

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Discussion
Pliska’s second amended complaint is deficient. Specifically, with regard to the June
2, 2017 incident, Pliska simply alleges that he had a seizure during an arrest and that the
officers attempted to protect his head from hitting the ground. Pliska does not identify any
individuals involved with his June 18, 2017, allegations. On June 19, 2017, he alleges that
he asked for, and then received, a new roll of toilet paper. Pliska does not identify any
individuals involved with his June 21, 2017, allegations in which he states that jail staff
asked him to stop faking a seizure. Lastly, while he alleges that defendant Tylor Rich denied
him his medication on August 27, 2017, he does not allege that he was harmed by the lack
of medication.
I will allow Pliska one more opportunity to file an amended complaint. Pliska should
pay careful attention to the following guidelines if he decides to file a third amended
complaint. First, Pliska is advised that he should not include his allegations about his arrest
on June 2, 2017, because the allegations do not state a plausible claim for relief and, even if
they did, the allegations are not related to his claims that arose at the jail. Second, Pliska
should follow the directions in the form complaint when setting forth his allegations. That
is, he should state, (1) who violated his rights (Pliska must name the individual defendants
involved in his allegations and if he does not know the name of any defendant, he may call
then John or Jane Doe defendant and learn their name later on in the case); (2) what each
defendant did; (3) when they did it; (4) where it happened; and (5) why they did it, if Pliska
knows.
In sum, if Pliska wants to proceed, he should file a comprehensive third amended
complaint on or before March 30, 2018. Failure to file a third amended complaint within
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this time period may result in dismissal of this action. The third amended complaint must
bear the docket number assigned to this case and must be labeled “Amended Complaint.”
The third amended complaint supersedes the prior complaint and must be complete in itself
without reference to any other complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch.
Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). The third amended complaint must be
filed on the enclosed complaint form. If a third amended complaint is received, I will screen
it pursuant to 28 U.S.C. § 1915A.
ORDER
NOW, THEREFORE, IT IS ORDERED that on or before March 30, 2018, the
plaintiff shall file a third amended complaint as described in this order.
IT IS FURTHER ORDERED that the Clerk’s Office mail the plaintiff a prisoner
complaint form.
Dated at Milwaukee, Wisconsin this 9th day of March, 2018.
BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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