Jackson v. Brooks et al

Filing 12

ORDER signed by Chief Judge William C. Griesbach on 3/7/18. Plaintiff's 2 MOTION for leave to proceed without prepayment of the filing fee is GRANTED. Defendants Jean Lutsey, Scott Eckstein and John Doe are DISMISSED. Defendants Brooks a nd Martin shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. This case is returned to Magistrate Judge Joseph for further proceedings. (cc: all counsel and via US Mail to Joseph M. Jackson and Warden)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSEPH M. JACKSON,
Plaintiff,
v.

Case No. 17-C-1792

DAVE BROOKS, FSA MARTIN,
JEAN LUTSEY, SCOTT ECKSTEIN, and
JOHN DOES,
Defendants.

ORDER

Plaintiff Joseph Jackson, who is representing himself, filed a civil rights complaint under
42 U.S.C. § 1983. This case is assigned to U.S. Magistrate Judge Nancy Joseph; however, because
not all parties have had the opportunity to consent to magistrate judge jurisdiction, the case was
randomly referred to this U.S. District Court judge for screening of the complaint. After entry of
this Order, the case will be returned to Judge Joseph for further proceedings.
MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
The Prison Litigation Reform Act gives courts discretion to allow prisoners to proceed with
their lawsuits without prepaying the $350.00 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 December 28, 2017, Judge Joseph ordered Jackson to pay an initial partial filing fee
of $2.04. He paid that fee on February 20, 2018. The court will grant Jackson's motion. He must
pay the remainder of the filing fee over time in the manner explained at the end of this Order.

SCREENING OF THE 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; and 2) the defendant was acting under
color of state law. Buchanan–Moore v. Cty. 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 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)).
ALLEGATIONS IN THE COMPLAINT
Jackson explains that he arrived at Green Bay Correctional Institution in 2017. He asserts
that his medical records were sent to health services; the records indicated that he had been
diagnosed with an allergy to apples. Jackson states that exposure to apples “could lead to his death,
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as breathing passage swell and close.” ECF No. 1 ¶ 20. Jackson states that the information
regarding his allergy was also forwarded to the dietary department to ensure his meals were free of
apple products.
Jackson asserts that he spoke to defendant Martin about his allergy, and Martin informed
Jackson that he would not receive a food tray free of apple products. Martin allegedly told Jackson
that the institution does not provide food substitutions for apple allergies.
Jackson explains that he was forced to accept food trays containing foods that his dietician
had warned him to avoid, such as apple sauce, apple bars, and fruit salad with apples. Jackson
asserts that Martin and Brooks repeatedly told him to eat around the apples; however, Jackson
explains that there is a lot of cross-contamination and that he was often unsure whether food
contained apple products.
Jackson alleges that Martin and Brooks informed the complaint examiner that substitutions
are not given for allergies to foods such as onions, apples, and tomatoes. They allegedly stated that
the Green Bay food services department requires inmates to use a “self-select process.” Id. ¶ 15.
According to Jackson, Martin instructed him to contact health services to get documentation
confirming his allergy and ordering an apple-free food tray. Jackson states that he contacted Lutsey
to enforce the dietician’s order. He does not indicate whether or how Lutsey responded.
THE COURT'S ANALYSIS
To state a claim of deliberate indifference to a serious medical need, a plaintiff must allege
that: (1) he suffered from an objectively serious medical condition; and (2) the defendants were
deliberately indifferent to a risk of serious harm from that condition. Gomez v. Randle, 680 F.3d
859, 865 (7th Cir. 2012). While the Eighth Amendment does not entitle prisoners to “demand
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specific care” or “the best care possible,” it does entitle them to “reasonable measures to meet a
substantial risk of serious harm.” Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997).
With this standard in mind, the court will allow Jackson to proceed on a deliberate
indifference claim against Martin and Brooks based on his allegations that, despite Jackson’s
allergy, they repeatedly denied or ignored his requests for assistance in obtaining a food tray free
of apple products.
The court will not allow Jackson to proceed against the remaining defendants. Under
§ 1983, for a defendant to be liable, he “must be personally responsible for the deprivation of a
constitutional right.” Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations and
internal quotations omitted). Jackson includes Scott Eckstein, the warden of Green Bay, and “Food
Service Supervisors” in the caption of his complaint, but he does not include allegations explaining
what they did or did not do to allegedly violate his rights. Under § 1983, a supervisor is not liable
for the misconduct of his subordinates. Instead, a person is liable only for what he personally did
or did not do. Because Jackson appears to sue these defendants only because of their positions as
supervisors, he fails to state a claim against them.
Finally, Jackson fails to state a claim against Lutsey. Jackson alleges that he wrote to Lutsey
to ask her to enforce the dietician’s orders, but he does not allege whether or how Lutsey responded
to his letter. Without this information, the court cannot reasonably infer that Lutsey violated
Jackson’s constitutional rights.
THEREFORE, IT IS ORDERED that plaintiff’s motion for leave to proceed without
prepayment of the filing fee (ECF No. 2) is GRANTED.

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IT IS FURTHER ORDERED that defendants Jean Lutsey, Scott Eckstein, and John Doe
are 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 defendants
Dave Brooks and FSA Martin.
IT IS FURTHER ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this court, defendants Brooks and Martin shall file a
responsive pleading to the complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the agency having custody of plaintiff shall collect from
his institution trust account the $347.96 balance of the 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 county, state, or federal institution, 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.
IT IS FURTHER ORDERED that this case be returned to United States Magistrate Judge
Joseph for further proceedings.

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IT IS FURTHER ORDERED that the parties may not begin discovery until after the court
enters a scheduling order setting deadlines for discovery and dispositive motions.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, plaintiff
shall submit all correspondence and case filings to institution staff, who will scan and e-mail
documents to the court.1 If 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 plaintiff 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 this 7th

day of March, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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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