Sampson v. Tokar et al

Filing 9

DECISION AND SCREENING ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that Sampson's motion to proceed without prepayment of the filing fee (Docket # 9) is GRANTED. IT IS FURTHER ORDERED that Dr. Michael Hagan and Lieutenant Lon dre are DISMISSED as defendants. IT IS ALSO ORDERED that, pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, copies of Sampsons complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the state defendant Dr. Tokar. (cc: all counsel, plaintiff, warden) (asc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DONALD SAMPSON,
Plaintiff,
v.

Case No. 17-CV-1795

DR. TOKAR,
DR. MICHAEL HAGAN, and
LIEUTENANT LONDRE,
Defendants.

DECISION AND ORDER SCREENING PLAINTIFF’S COMPLAINT
Donald Sampson, who is representing himself, filed a civil rights complaint under 42
U.S.C. § 1983 alleging that the defendants violated his constitutional rights by allowing his
psychological services unit request slip to be read by another inmate and by failing to
prevent harm to him. Before me is Sampson’s motion seeking leave to proceed without
prepayment of the filing fee and I will also screen his complaint.
Not all parties have had the opportunity to fully consent to magistrate judge
jurisdiction under 28 U.S.C. § 636(c). Nonetheless, the court has jurisdiction to screen the
complaint pursuant to the Wisconsin Department of Justice’s limited consent to the exercise
of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between
the Wisconsin Department of Justice and this court.
This decision, therefore, resolves Sampson’s motion for leave to proceed without
prepayment of the filing fee and screens his complaint.

1.

Motion for Leave to Proceed without Prepayment of the Filing Fee

The Prison Litigation Reform Act applies to this case because Sampson was
incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give
an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying the civil
case filing fee, as long as he meets certain conditions. One of those conditions is that the
plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once he pays the initial partial
filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over
time, through deductions from his prisoner account. Id.
On January 10, 2018, I ordered Sampson to pay an initial partial filing fee of $2.94.
(Docket # 6.) Sampson paid the fee on January 29, 2018. Accordingly, I will grant
Sampson’s motion for leave to proceed without prepayment of the filing fee. He must pay
the remainder of the filing fee over time in the manner explained at the end of this order.
2.

Screening of the Complaint

Federal law requires that I 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). I must dismiss a complaint 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 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 the court to draw the reasonable inference that
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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, I 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 caused by the defendant 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).
I am obliged to give the 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)).
2.1

The Plaintiff’s Allegations

Sampson alleges that on September 17, 2017, he overheard an argument between
Officer Negran (not a defendant) and Juan Rodriguez (not a defendant), an inmate who was
housed in the cell next to Sampson. He heard Negran stopped at inmate Rodriguez’ cell
door. He then heard Negran make sexual comments to Rodriguez and saw Negran grabbed
Rodriguez’ penis. Sampson alleges that he then took it upon himself to submit a
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psychological services unit (PSU) request slip later that day regarding the incident. In the
PSU slip, Sampson stated:
[I]nmate Rodriguez and C/O Negran was arguing and C/O Negran
turn toward the direction of my cell and grabbed his private parts (his
penis) and making comments like “Rodriguez” likes me, that’s why he
keeps talking to me. “Officer also stated he wants to give me a hug,
and that’s all inmate Rodriguez, do is suck dick. That made me feel
very uncomfortable and unsafe. It gave me a bad imagize [sic] from
when I was a little boy and bad things happen to me by my uncle in
which he did to me. I still have dreams about the matter. The officer
was very nasty and unprofessional to the inmate Rodriguez.
(Docket # 1, ¶ 10.)
On September 19, 2017, Sampson saw Rodriguez returning to his cell and
asked him if he was okay and where he had been. Rodriguez responded that he had
been to see Dr. Tokar. He stated they discussed, among other things, Sampson’s
PSU slip. Tokar asked Rodriguez whether he knew Sampson had written a PSU slip
about him. When Rodriguez responded “no,” Tokar asked Rodriguez whether he
wanted to and then then allowed him to read Sampson’s PSU slip.
After telling Sampson this, Rodriguez asked Sampson why he had informed
Tokar of what happened with the officer. He then told Sampson “Man when I see
you, I’m fucking you up for that hoe ass shit.” Id., ¶ 14. Rodriguez also contacted his
friends, who also taunted and threatened Sampson.
Later that day, Sampson wrote another PSU slip to Tokar asking her why she
had shared his “confidential” slip with Rodriguez. Id., ¶ 16. He stated that Rodriguez
and his friends were now threatening to harm him and that he felt suicidal.
Sampson also wrote Dr. Hagan, the head of the PSU, about Tokar’s actions.
Hagan responded that Tokar “did the right thing.” Id., ¶ 21.
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Sampson wrote Security Director Lieutenant Captain Giemoth and the
warden (not defendants) as well, but he did not receive a response from either of
them. Sampson continued to write Hagan, and also wrote to Lieutenant Londre
about the incident. Londre called Sampson to his office and made fun of him.
Sampson states that since the taunting and threats from Rodriguez and his
friends began, he has been unable to engage in recreation or eat. He wrote his family
informing them that he is “very stressed out, and is ready to take [his] life.” Id., ¶ 18.
Sampson seeks compensatory and punitive damages.
2.2

Analysis

Sampson appears to be asserting claims of violation of right to privacy and
failure to prevent harm. I will address each in turn.
Right To Privacy
The Supreme Court has held that a person’s constitutional right of privacy “is
limited to those rights that are “fundamental” and are “implicit in the concept of
ordered liberty.” Paul v. Davis, 424 U.S. 693, 713 (1976). In that regard, the Supreme
Court has recognized a right to informational privacy under the Fourteenth
Amendment. Whalen v. Roe, 429 U.S.589, 599-600 (1977). The Seventh Circuit found
in Denius v. Dunlap that there is a “clearly established ‘substantial’ right in the
confidentiality of medical information that can only be overcome by a sufficiently
strong state interest.” 209 F.3d 944, 956 (7th Cir. 2000).
Sampson seems to be asserting that his PSU request slip was his private
medical information and that Tokar violated his right to privacy regarding that
information when she allowed Rodriguez to read the slip. Whether such a request
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slip that assumedly passes through the hands of various prison officials before it gets
to medical staff can be classified as private medical information is unclear. Further,
Sampson’s allegations muddle its privacy classification. Specifically, it is not clear
whether he wrote the slip requesting to see PSU himself or for PSU to see Rodriguez.
However, because this information is unknown, I cannot find the claim to be invalid.
Thus, I will allow Sampson to proceed on his claim of a violation of his Fourteenth
Amendment right to privacy against Tokar.
Sampson’s assertion of a right to privacy violation against Hagan and Londre,
however, is insufficient. A defendant cannot generally be held liable under section
1983 simply because he had knowledge of another's past misconduct. Ashcroft, 555
U.S. at 677. A defendant must “know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye for fear of what they might see.” Matthews v. City of E.
St. Louis, 675 F.3d 703, 708 (7th Cir.2012) (quoting Jones v. City of Chicago, 856 F.2d
985, 992-93 (7th Cir.1988)). Thus, Sampson may not proceed with his claim of a
Fourteenth Amendment right to privacy violation against Hagan and Londre.
Failure to Prevent Harm
The Eighth Amendment guarantees that prison officials “ ‘take reasonable
measures to guarantee the safety of the inmates.’ ” Farmer v. Brennan, 511 U.S. 825,
832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526–527 (1984). To state an
Eighth Amendment failure to prevent harm claim, a prisoner must allege that (1) he
faced a “substantial risk of serious harm” and (2) the prison officials identified acted
with “deliberate indifference” to that risk. Farmer, 511 U.S. at 834; Brown v. Budz,
398 F.3d 904, 909 (7th Cir. 2005).
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With regard to the first prong, “a substantial risk of serious harm is one in
which the risk is ‘so great’ that it is ‘almost certain to materialize if nothing is done.
‘[T]he conditions presenting the risk must be ‘sure or very likely to cause ... needless
suffering,’ and give rise to ‘sufficiently imminent dangers.’ ” See Wilson v. Ryker, 451
F. App'x 588, 589 (7th Cir. 2011) (citations omitted). Sampson alleges that on
September 19, 2017, Rodriguez and his friends began their threats to harm him
because he had informed Tokar of the incident that occurred on September 17
between Rodriguez and an officer. However, Sampson filed his complaint three
months after the alleged threats began, and in his complaint he does not allege
Rodriguez or his friends have acted, attempted to act, or will soon act upon those
threats. Thus Sampson has not sufficiently alleged that he is “very likely” to be
seriously harmed or that he is in “imminent danger.” So he may not proceed on a
claim against the defendants for failure to prevent harm regarding the alleged threats
asserted against him.
The Seventh Circuit, however, has reasoned that suicide, attempted suicide
and other acts of self-harm clearly pose a “serious” risk to an inmate's health and
safety. See Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006) (quoting Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir.2001)). Indeed, “prison officials have an
obligation to intervene when they know a prisoner suffers from self-destructive
tendencies.” Rice ex rel. Rice v. Correctional Medical Servs., 675 F.3d 650, 665 (7th
Cir.2012) Sampson asserts that he is suicidal and that he informed Tokar of this. He
asked her to respond as soon as possible, but he does not allege that she did. Rather,

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he states generally that nothing was done about the matter. At this stage, I find that
he has sufficiently alleged a claim of failure to prevent harm claim against Tokar.
THEREFORE, IT IS ORDERED that Sampson’s motion to proceed without
prepayment of the filing fee (Docket # 9) is GRANTED.
IT IS FURTHER ORDERED that Dr. Michael Hagan and Lieutenant Londre are
DISMISSED as defendants.
IT IS ALSO ORDERED that, pursuant to an informal service agreement between
the Wisconsin Department of Justice and this court, copies of Sampson’s complaint and this
order are being electronically sent today to the Wisconsin Department of Justice for service
on the state defendant Dr. Tokar.
IT IS ALSO ORDER that, pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, defendant Dr. Tokar 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 Sampson shall
collect from his institution trust account the $347.06 balance of the filing fee by collecting
monthly payments from Sampson’s prison trust account in an amount equal to 20% of the
preceding month's income credited to his 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 Sampson transfers to another county, state, or federal institution, the transferring
institution shall forward a copy of this order, along with Sampson’s remaining balance, to
the receiving institution.

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IT IS ALSO ORDERED that a copy of this order be sent to the warden of the
institution where Sampson is confined.
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,
Sampson shall submit all correspondence and case filings to institution staff, who will scan
and e-mail documents to the court.1 If Sampson is no longer incarcerated at a Prisoner EFiling 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 JUDGE’S CHAMBERS. It
will only delay the processing of the case.
I advise Sampson that, if he fails to file documents or take other required actions by
the deadlines I have set, I may dismiss the case based on his 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 at Milwaukee, Wisconsin this 19th day of April, 2018.

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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BY THE COURT:
s/Nancy Joseph ____________
NANCY JOSEPH
United States Magistrate Judge

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