Dees v. Clements et al
Filing
9
ORDER signed by Judge J.P. Stadtmueller on 3/5/2018 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. By 3/26/2018, Plaintiff to FILE amended complaint or this action will be dismissed. 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 Charles Jolson Dees and Interim Superintendent)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES JOLSON DEES,
v.
Plaintiff,
WARDEN MARK CLEMENTS,
NURSE HOBAN, DONNA
FONTANA, BETH DITTMANN,
JOANNE BOVEE, WARDEN PAUL
KEMPER, CAPTAIN CHAMPAM,
DEPUTY WARDEN JOHNSON,
SECURITY DIRECTOR ALDANA,
SGT. PIECH, SGT. HAGERTY,
OFFICER AKER, K. VASQUEZ, K.
SCHULTZ, M. REDD, A. HILTANEN,
B. LABELLE, B. HOMPE, CATHY
JESS, and M. GREEN,
Case No. 18-CV-54-JPS
ORDER
Defendants.
Plaintiff Charles Jolson Dees, who is incarcerated at the Drug Abuse
Correctional Center in Winnebago, Wisconsin, 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). Plaintiff has been assessed and paid an initial partial filing fee of $14.23.
See 28 U.S.C. § 1915(b)(1).
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
Page 2 of 7
“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 he has a prosthetic leg. (Docket #1 at 3). On
January 20, 2016, Plaintiff was transferred to Dodge Correctional Institution
(“Dodge”). Id. Once there, Defendant Nurse Hoban (“Hoban”) took the
special shoes that were fitted for the prosthetic. Id. The shoes were then lost.
Id. Plaintiff states that he has suffered a number of painful medical
problems since the loss of his shoes. Id.
Plaintiff’s
allegations
against
Hoban
implicate
his
Eighth
Amendment right to a minimal level of healthcare while in custody. Petties
Page 3 of 7
v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016). The Eighth Amendment is
violated when the prisoner shows that they “suffered from an objectively
serious medical condition,” and that “the individual defendant was
deliberately indifferent to that condition.” Id. at 728. The Gayton case neatly
summarizes the claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating h[im]; and (3) this indifference caused h[im] some
injury. An objectively serious medical condition is one that
has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would perceive
the need for a doctor’s attention. A medical condition need
not be life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This 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.
Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, deliberate indifference
is simply a synonym for intentional or reckless conduct, and
that reckless describes conduct so dangerous that the
deliberate nature of the defendant's actions can be inferred.
Simply put, an 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. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the
harm ultimately was not averted.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted). In sum, “deliberate indifference means actual, personal
knowledge of a serious risk, coupled with the lack of any reasonable
Page 4 of 7
response to it.” Ayoubi v. Dart, No. 17-1561, 2018 WL 671152, at *2 (7th Cir.
Feb. 2, 2018). Plaintiff’s allegations do not explain, or even allow an
inference, that Hoban deliberately misplaced Plaintiff’s shoes knowing this
would cause him severe pain or other medical complications. Thus,
Plaintiff’s allegations fail to state a valid claim against Hoban.
As to the other defendants, they are not mentioned at all. Plaintiff
indicates that some are from Dodge, but others are employed at Racine
Correctional Institution. See (Docket #1 at 2). Without any allegations of
what each defendant did, and how their actions violated Plaintiff’s
constitutional rights, he may not proceed against them.
The Court will allow Plaintiff an opportunity to amend his complaint
to correct these deficiencies. If he chooses to offer an amended complaint,
Plaintiff must do so no later than March 26, 2018. If he does not do so, this
action will be dismissed. Plaintiff should be aware that an 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.
Page 5 of 7
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 March 26, 2018,
Plaintiff shall file an amended pleading or this action will be dismissed;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the 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 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
Page 6 of 7
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.
Dated at Milwaukee, Wisconsin, this 5th day of March, 2018.
BY THE COURT:
_____________________________
J. P. Stadtmueller
U.S. District Judge
Page 7 of 7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?