Wright v. State of Wisconsin Department of Corrections

Filing 7

SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/6/2017. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Plaintiff to FILE an amended complaint by 12/29/2017; failure to do so may result in dism issal of this action. Agency having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Jeffrey S. Wright and Warden at Kettle Moraine Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY S. WRIGHT,

v.

Plaintiff,

Case No. 17-CV-1384-JPS

STATE OF WISCONSIN
DEPARTMENT OF CORRECTIONS,

ORDER

Defendant.
Plaintiff Jeffrey Wright, who is incarcerated at the Kettle Moraine
Correctional Institution, proceeds in this matter pro se. He filed a
complaint alleging that Defendant violated his constitutional rights.
(Docket #1). This case was originally assigned to Magistrate Judge David
E. Jones, but because not all parties have had the opportunity to consent to
magistrate judge jurisdiction, the case was randomly reassigned to a
District Court judge for screening of the complaint.
In addition to filing a complaint, Plaintiff filed a motion for leave to
proceed without prepayment of the filing fee. (Docket #2). The Prison
Litigation Reform Act (“PLRA”) gives courts discretion to allow prisoners
to proceed with their lawsuits without prepaying the $350 filing fee, as
long as they comply with certain requirements. 28 U.S.C. § 1915. One of
those requirements is that the prisoner pay an initial partial filing fee. On
October 16, 2017, Magistrate Jones ordered Plaintiff to pay an initial
partial filing fee of $9.87. (Docket #5). Plaintiff paid that fee on November
2, 2017. Accordingly, the Court will grant Plaintiff’s motion to proceed

without prepayment of the full filing fee. He is required to pay the balance
of the filing fee over time in the manner explained at the end of this order.
Next, the Court is required to 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).
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 Atl. 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. BuchananMoore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Vill. 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)).
Plaintiff alleges that he works in his institution’s kitchen as a
dishwasher. (Docket #1 at 3). A cook ordered him to go into a different
area of the kitchen, where he is not assigned. Id. at 2. While there, an oven
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rack fell on him and burned his arm. Id. It is not clear from the complaint
whether the oven rack fell on Plaintiff because of his own actions or
because of a problem with the oven rack itself. Plaintiff explains that he
was seen by health services and given cream to apply to the burn. Id. at 3.
He asserts that the burn is now infected. Id. Plaintiff seeks money
damages and asks that the oven rack be fixed. Id. at 4.
Plaintiff fails to state a claim under § 1983 against the only named
defendant, the Wisconsin Department of Corrections (“DOC”). For a
defendant to be liable under § 1983, it must have participated directly in
the violation of a plaintiff’s constitutional rights. Hildebrandt v. Ill. Dept. of
Natural Res., 347 F.3d 1014, 1036 (7th Cir. 2003). The DOC cannot be held
liable for the actions of its employees. See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009). Because Plaintiff fails to allege that a DOC policy violated his
constitutional rights, he fails to state a claim against the DOC.
Had Plaintiff named a proper defendant—that is, a state actor who
participated directly in the violation of Plaintiff’s constitutional rights—
his complaint would approach sufficiency to state a claim under the
Eighth Amendment for deliberate indifference to his safety and to his
medical needs, but, at this stage, his complaint would still fall short.
The Eighth Amendment’s proscription against cruel and unusual
punishment protects prisoners from the “unnecessary and wanton
infliction of pain” by the state. Hudson v. McMillian, 503 U.S. 1, 5 (1992)
(citation and internal quotations omitted). The state violates this
proscription when it “so restrains an individual’s liberty that it renders
him unable to care for himself, and at the same time fails to provide for his
basic human needs.” Helling v. McKinney, 509 U.S. 25, 32 (1993);
Christopher v. Buss, 384 F.3d 879, 881–82 (7th Cir. 2004). This includes
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failing to take reasonable measures to ensure an inmate’s safety from
physical surroundings and failing to attend to an inmate’s serious medical
needs.
To state a claim premised on a prison official’s failure to protect
him from harm, an inmate must allege that a prison official knew of and
disregarded an “excessive risk” to his “health and safety.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994). A sufficiently serious risk, evaluated on
an objective basis, is one that society considers so grave that to expose any
unwilling individual to it would offend contemporary standards of
decency. Helling, 509 U.S. at 36; see also Bagola v. Kindt, 39 F.3d 779, 780 (7th
Cir. 1994) (dangerous machinery, which caused inmate injury leading to
amputation, posed sufficiently serious risk of harm); Jones v. Morris, 777
F.2d 1277, 1280 (7th Cir. 1985) (dangerous scaffolding, which caused
inmate’s fall, posed sufficiently serious risk of harm). The question of the
defendant’s culpability is subjective; the official must both be aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference. Farmer, 511 U.S.
at 832. Negligence, or even gross negligence, is insufficient to state a
constitutional claim. See Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012);
Watkins v. Lancor, 558 F. App’x 662, 665 (7th Cir. 2014).
Plaintiff alleges that he was injured while working near an oven
rack. Although his prayer for relief requests that the oven rack be fixed, he
has not alleged that it was broken at the time he was injured, or that its
disrepair led to his injury. Further, even if the oven rack posed a
dangerous risk at the time Plaintiff was directed to work near it, Plaintiff
has not alleged that any prison official knew of the danger. Even under
the generous standard to which pro se litigants are entitled at the screening
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stage, these allegations are not sufficient to state an Eighth Amendment
claim for deliberate indifference to his safety due to dangerous prison
conditions.
Next, a deliberate indifference claim premised on medical needs
also has both an objective and subjective component. “To determine if the
Eighth Amendment has been violated in the prison medical context, we
perform a two-step analysis, first examining whether a plaintiff suffered
from an objectively serious medical condition, and then determining
whether the individual defendant was deliberately indifferent to that
condition.” Petties v. Carter, 836 F.3d 722, 727–28 (7th Cir. 2016) (citing
Farmer, 511 U.S. at 834). Here, even assuming Plaintiff’s burn was
sufficiently serious to satisfy the objective element of an Eighth
Amendment claim for deliberate indifference to a serious medical need,
Plaintiff’s allegations do not suggest that medical personnel were
deliberately indifferent to his needs. Plaintiff alleges that, upon his
request, health services personnel evaluated his burn and treated it with
cream. Although Plaintiff states that the burn is now infected, he does not
allege that health services personnel are failing to treat the infection. As
such, Plaintiff’s complaint, as it stands, fails to state a medical deliberate
indifference claim.
In sum, Plaintiff has not named a proper defendant and has not
adequately alleged claims for deliberate indifference to his safety or
medical needs. The Court will permit Plaintiff to file an amended
complaint curing the deficiencies in the original complaint as described
herein. The amended complaint must be filed on or before December 29,
2017. Failure to file an amended complaint within this time period may
result in dismissal of this action. Plaintiff is advised that the amended
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complaint must bear the docket number assigned to this case and must be
labeled “Amended Complaint.” Plaintiff is further advised that a
successful complaint alleges “the who, what, when, where, and how: the
first paragraph of any newspaper story.” See DiLeo v. Ernst & Young, 901
F.2d 624, 627 (7th Cir. 1990).
The amended complaint supersedes the prior complaint and must
be complete in itself without reference to the original complaint. See Duda
v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57
(7th Cir. 1998). In Duda, the Seventh Circuit emphasized that in such
instances, the “prior pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at 1057 (citation omitted); see also
Pintado v. Miami-Dade Housing Agency, 501 F.3d 1241, 1243 (11th Cir. 2007)
(“As a general matter, ‘[a]n amended pleading supersedes the former
pleading; the original pleading is abandoned by the amendment, and is no
longer a part of the pleader's averments against his adversary.’”) (quoting
Dresdner Bank AG, Dresdner Bank AG in Hamburg v. M/V OLYMPIA
VOYAGER, 463 F.3d 1210, 1215 (11th Cir. 2006)). If an amended complaint
is received, it will be screened pursuant to 28 U.S.C. § 1915A.
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 on or before December 29, 2017,
Plaintiff shall file an amended pleading curing the defects in the original
complaint as described herein;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the balance of the
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filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’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 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;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined; and
IT IS FURTHER ORDERED that Plaintiff shall 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.
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.

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Dated at Milwaukee, Wisconsin, this 6th day of December, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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