Peck v. Schmidt et al

Filing 8

SCREENING ORDER signed by Judge J.P. Stadtmueller on 1/10/2018. Payment of initial partial filing fee WAIVED; 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants Jane and John Doe Jail Officer s and John Doe Inmate DISMISSED from action. Plaintiff PERMITTED to proceed on claim of deliberate indifference to serious medical needs, in violation of the Eighth Amendment, against Richard Schmidt, Jane and John Doe Medical Staff, and Jane and Jo hn Doe Mobile X-Ray Employees. Copies of Plaintiff's Complaint and this Order to be electronically sent to Milwaukee County for service on Milwaukee County Defendants, who shall FILE a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT balance of filing fee in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Dennis James Peck and Sheriff at Milwaukee County Jail) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DENNIS JAMES PECK,

v.

Plaintiff,

RICHARD SCHMIDT, JANE AND
JOHN DOE JAIL OFFICERS, JANE
AND JOHN DOE MEDICAL STAFF,
JANE AND JOHN DOE MOBILE XRAY EMPLOYEES, and JOHN DOE
INMATE,

Case No. 17-CV-1800-JPS

ORDER

Defendants.
Plaintiff, who is incarcerated at the Milwaukee County Jail, filed a
pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #1). This matter comes before the Court on Plaintiff’s
motion to proceed in forma pauperis. (Docket #2).
Normally, the Court would first assess an initial partial filing fee
(“IPFF”) pursuant to 28 U.S.C. § 1915(b)(1). However, Plaintiff’s prison trust
account records show that, during his brief period of incarceration thus far,
he only momentarily had a positive balance in his account, and he is
currently well into the red. Consequently, Plaintiff’s IPFF as calculated
using the statutory formula would be zero, obviating the need for the Court
to assess it. Because the Prison Litigation Reform Act (“PLRA”) mandates
that a prisoner will not be prohibited from bringing a civil action for the
reason that he lacks the assets and means to pay an IPFF, id. § 1915(b)(4),
Plaintiff will be granted a waiver of the IPFF in this case. However, he is

still obligated to pay the full filing fee pursuant to the installment scheme
set forth in the PLRA. See id. § 1915(b)(1)–(2).
Having determined that Plaintiff need not pay the IPFF, the Court
next turns to screening his complaint. 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. Id. § 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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “Malicious,” although sometimes treated as a synonym for “frivolous,”
“is more usefully construed as intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109 (7th Cir. 2003); Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
2011).
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; 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)); Christopher v. Buss, 384 F.3d 879, 881
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(7th Cir. 2004). However, a complaint that offers “‘labels and conclusions’”
or “‘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. The complaint
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.
In considering whether a complaint states a claim, courts should first
“identif[y] 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 wellpleaded factual allegations, the Court must “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. Cnty.
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446 U.S. 635,
640 (1980). The Court is obliged to give 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’s allegations concern an attack he suffered at the hands of a
fellow inmate as well as the medical care he thereafter received. On
November 13, 2017, he was attacked by a “mentally ill” inmate while sitting
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in the dayroom. (Docket #1 at 2). The inmate hit him repeatedly with a chair.
Id. The blows injured Plaintiff’s left hand and fingers. Id. Once correctional
officers subdued the attacker, medical staff were summoned to attend to
Plaintiff. Id.
Initially, they diagnosed him with swelling in one of the fingers of
his left hand. Id. at 3. He continued to complain of severe finger pain for
weeks, but medical staff refused to give him pain medication. Id. Plaintiff
underwent two x-rays which showed no injury to his finger. Id.
Nevertheless, he continued to complain of chronic pain, and a third x-ray
showed that his finger was in fact broken. Id. He was rushed to an
appointment with an outside specialist, who conducted immediate surgery
on the finger. Id.
Plaintiff complains of two things. First, he says that prison staff failed
to protect him from the attack by his fellow inmate. Id. at 4. Second, Plaintiff
claims that he was provided constitutionally inadequate medical care. Id.
Plaintiff’s allegations, while they appear straightforward, present
several difficulties. First, Plaintiff cannot proceed against the inmate who
attacked him. Section 1983 exists to remedy constitutional violations by
those acting under color of state law, West v. Atkins, 487 U.S. 42, 49 (1988),
and a fellow inmate is not a state actor, Gulley–Fernandez v. Naseer, Case No.
16-CV-133, 2016 WL 2636274, at *2 (E.D. Wis. May 5, 2016). If Plaintiff
believes he has a claim against the inmate for battery, that is a matter for a
state, not federal, court.
Second, the Court must dismiss Plaintiff’s failure-to-protect claim.
Such claims are rooted in the Eighth Amendment, which imposes upon
prison officials the duty to “take reasonable measures to guarantee the
safety of the inmates,” including protecting them from other prisoners.
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Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state a failure-to-protect
claim, an inmate must allege that (1) “he is incarcerated under conditions
posing a substantial risk of serious harm,” and (2) the defendants acted with
“deliberate indifference” to that risk. Id.; Brown v. Budz, 398 F.3d 904, 909
(7th Cir. 2005). “Deliberate indifference” here means that “the defendants
knew of and disregarded [the] risk” of harm. Wilson v. Ryder, 451 F. App’x
588, 589 (7th Cir. 2011). Further, “a generalized risk of violence is not
enough, for prisons are inherently dangerous places.” Id. Instead, the
prisoner must allege a tangible threat to his safety, the risk of which is “so
great” that it is “almost certain to materialize if nothing is done.” Brown, 398
F.3d at 911.
Plaintiff has not alleged facts giving rise to an inference that his
fellow inmate posed a substantial risk of serious harm, or that Defendants
acted with deliberate indifference to that risk. Nowhere in his complaint
does Plaintiff allege that any Defendant knew or had any reason to know
that the inmate in question would attack anyone, other than accusing him
of being mentally ill. Unspecified “mental illness” does not itself give rise
to a propensity to physical violence. If it led this inmate to attack on a
particular occasion, that is unfortunate, but without more, such an incident
cannot be laid at Defendants’ feet on a failure-to-protect theory.
Third, in light of the dismissal of the failure-to-protect claim, the
correctional officer Doe defendants must be dismissed. Individuals are
liable under Section 1983 only for their own actions, not the actions of their
colleagues or of those they supervise. Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995). In other words, there is no vicarious liability for
constitutional violations under Section 1983. Id. Plaintiff does not allege that

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any correctional officer played any part in his purportedly inadequate
healthcare, and as such none of them can be held liable for it.
With these defects in the complaint addressed, the Court finds that
Plaintiff has alleged facts sufficient to proceed on a claim of deliberate
indifference to his serious medical needs, in violation of the Eighth
Amendment, against the Doe defendants who are medical staff at the
institution and “mobile [x-ray] employees.” See (Docket #1 at 1). To state
such a claim, Plaintiff must show: (1) an objectively serious medical
condition; (2) that Defendants knew of the condition and were deliberately
indifferent in treating it; and (3) this indifference caused him some injury.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry 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. 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).
While the diagnostic error in this case might ultimately be explained
as mere inadvertence, at the present stage the Court, generously construing
Plaintiff’s allegations, find that he states a claim against Defendants for
failure to properly diagnose his broken finger. Additionally, a deliberate
indifference claim could proceed on the theory that Defendants ignored
Plaintiff’s repeated complaints of severe pain. Either way, Plaintiff has
crossed the minimum threshold needed to advance. Further, although

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Plaintiff has not identified any of his healthcare providers by name, he can
use the discovery tools available to him to ascertain their identities.1
This leads the Court into its final housekeeping matter: Defendant
Richard Schmidt (“Schmidt”), Acting Sheriff of Milwaukee County.
Plaintiff’s deliberate indifference claim very likely cannot proceed against
him on its merits. Plaintiff does not allege that Schmidt had notice of the
attack against Plaintiff, the nature of Plaintiff’s injuries, the care Plaintiff
was provided, or Plaintiff’s ongoing complaints of pain. Without personal
knowledge of and involvement in the acts or omissions that caused Plaintiff
injury, Schmidt cannot be liable on a claim of deliberate indifference to
Plaintiff’s medical needs. Gentry, 65 F.3d at 561 (to be liable, a supervisory
defendant “must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye”).
However, the Court will retain Schmidt as a defendant in this case,
if only to facilitate service of the complaint and identification of the
remaining Doe defendants. See Duncan v. Duckworth, 644. F.2d 653, 655 (7th
Cir. 1981). Plaintiff is advised that in the Court’s scheduling order, which
will be issued after Schmidt is served, he will be afforded a period of time
in which to conduct discovery into the identities of the remaining Doe
defendants. He should seek this information from Schmidt. Failure to

It is unclear at this time who the x-ray employees worked for. If they
worked for the Milwaukee County Jail, they constitute state actors who may be
liable under Section 1983. If they worked for a private firm, the result is less clear;
those employees would likely only be amenable to suit under Section 1983 if the
firm had a contract to provide healthcare services to inmates like Plaintiff. See West,
487 U.S. at 54; Rodriguez v. Plymouth Ambulance Servs., 577 F.3d 816, 824 (7th Cir.
2009).
1

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amend the complaint to identify the Doe defendants by the deadline set
forth in the scheduling order may result in dismissal of this action.
For the reasons stated above, Plaintiff shall be permitted to proceed
on a claim of deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment, against Schmidt and the prison
medical staff and mobile x-ray employees, sued as Jane and John Does. 28
U.S.C. § 1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED;
IT IS FURTHER ORDERED that Defendants Jane and John Doe Jail
Officers and John Doe Inmate be and the same are hereby DISMISSED
from this action;
IT IS FURTHER ORDERED that pursuant to the informal service
agreement between Milwaukee County and this Court, copies of Plaintiff’s
complaint and this Order are being electronically sent today to Milwaukee
County for service on the Milwaukee County defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between Milwaukee County and this Court, 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 $350.00 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
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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. As each filing
will be electronically scanned and entered on the docket upon receipt by
the clerk, Plaintiff need not mail copies to Defendants. All Defendants will
be served electronically through the court’s electronic case filing system.
Plaintiff should also retain a personal copy of each document filed with the
Court.
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.

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Dated at Milwaukee, Wisconsin, this 10th day of January, 2018.
BY THE COURT:

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

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