Jones v. Eckstein et al

Filing 8

SCREENING ORDER signed by Judge J.P. Stadtmueller on 11/20/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants John Kind and Scott Eckstein DISMISSED from action. Plaintiff PERMITTED t o proceed on claim of deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment, against all remaining defendants. Copies of Plaintiff's Complaint and this Order to be electronically SENT to Wiscons in DOJ for service on such defendants, who shall file a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT from his institution trust account the balance of the filing fee in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Kurtis D. Jones and Warden at Green Bay Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KURTIS D. JONES,

v.

Plaintiff,

WARDEN SCOTT ECKSTEIN, SGT.
MENNING, C.O. HEFFERNAN, C.O.
DETERING, C.O. SPENCER, DR.
HARRIS-FORBES, DR. SCHWARTZOSCAR, JOHN KIND, LT. ANDREW
WICKMAN, LT. REBECCA LENZ,
LT. DANIEL CUSHING, SGT.
BONNIN, and SGT. LENNOYE,

Case No. 17-CV-1316-JPS

ORDER

Defendants.
Plaintiff Kurtis D. Jones, who is incarcerated at Green Bay
Correctional Institution (“GBCI”), proceeds in this matter pro se. He filed a
complaint alleging that 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). In light of Plaintiff’s extreme indigence, the Court has waived payment
of an initial partial filing fee. See (Docket #7); 28 U.S.C. § 1915(b)(4).
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

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“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. 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. 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 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 alleges that Defendants, all of whom work at GBCI, failed
to respond appropriately to his various acts of self-harm from May 9 to May
14, 2017. (Docket #1 at 4-8). Plaintiff’s allegations suffice at the screening
stage to state a claim for deliberate indifference to his serious medical
need—here, his risk of suicide—in violation of the Eighth Amendment.
Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). To state a claim of
deliberate indifference to a serious medical need, the plaintiff must show:
(1) an objectively serious medical condition; (2) that the defendants knew
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of the condition and were deliberately indifferent in treating it; and (3) this
indifference caused the plaintiff some injury. Gayton v. McCoy, 593 F.3d 610,
620 (7th Cir. 2010). The deliberate indifference inquiry here, like that
applicable to conditions of confinement, 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.” Id. Even if an official is aware of the
risk to the inmate’s health, “he is free from liability if he ‘responded
reasonably to the risk, even if the harm ultimately was not averted.’” Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 843 (1994)). Negligence cannot
support a claim of deliberate indifference, nor is medical malpractice a
constitutional violation. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v.
Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
Generously construing Plaintiff’s allegations, Defendants knew of
his self-harming activities and took little or no action to abate them. Further
factual development may undermine the knowledge component of
Plaintiff’s claim. Additional facts may also reveal the reasonableness of
Defendants’ responses to Plaintiff’s self-harming behavior. Nevertheless,
these and other issues must be left for a later stage of these proceedings.
Plaintiff’s allegations confirm, however, that two of the named
defendants were not involved in the events of the Complaint. Plaintiff does
not allege that John Kind (“Kind”), GBCI’s security director, had any direct
role in addressing Plaintiff’s self-harming issues in May 2017. Rather,
Plaintiff merely alleges that “[h]e is legally responsible for the overall
security of staffs and inmates[.]” (Docket #1 at 3) (capitalization altered). As
the above-cited precedent shows, even if this fact is taken as true, it is
insufficient to impose Eighth Amendment liability on Kind. Similarly,
Plaintiff makes no mention of Warden Scott Eckstein’s (“Eckstein”)
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knowledge of or responses to Plaintiff’s May 2017 activities. Both of these
defendants lacked subjective knowledge of Plaintiff’s risk of self-harm, and
so Plaintiff cannot proceed on a deliberate indifference claim against them.
See Estate of Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th
Cir. 2000) (“In order to be liable under the Eighth Amendment, a prison
official must be cognizant of the significant likelihood that an inmate may
imminently seek to take his own life and must fail to take reasonable steps
to prevent the inmate from performing this act.”).
Plaintiff also desires to challenge GBCI’s policies with regard to
suicidal inmates. (Docket #1 at 9). Such a claim would be leveled against
Eckstein, GBCI’s warden, in his official capacity. A suit against Eckstein in
his official capacity is akin to a suit against the Department of Corrections
(“DOC”). Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008). The DOC
is a state agency, which means it is considered an “arm[ ] of the state.” Kroll
v. Board of Trustees of Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991). It, like the
state of Wisconsin, enjoys immunity under the Eleventh Amendment from
civil rights lawsuits filed by citizens. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 66-67 (1989). Wisconsin’s immunity extends to claims for damages
in Section 1983 lawsuits. Brown v. Budz, 398 F.3d 904, 917-18 (7th Cir. 2005).
Here, money damages are all that Plaintiff seeks. (Docket #1 at 10).
Therefore, Plaintiff may not proceed on his policy claim on the basis of
sovereign immunity under the Eleventh Amendment.
In sum, the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Deliberate indifference to Plaintiff’s
serious medical needs, namely his risk of suicide in May 2017, in violation
of the Eighth Amendment, against all Defendants except for Kind and
Eckstein.
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Accordingly,
IT IS ORDERED that 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 Defendants John Kind and Scott
Eckstein be and the same are hereby DISMISSED;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court,
copies of the 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
transferring institution shall forward a copy of this Order along with
plaintiff's remaining balance to the receiving institution;

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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.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
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 20th day of November, 2017.
BY THE COURT:

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

The Prisoner E-Filing Program is in effect at Columbia Correctional
Institution, Dodge Correctional Institution, Green Bay Correctional Institution,
Oshkosh Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility.
1

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