Vanpietersom v. Peterson et al

Filing 8

SCREENING ORDER signed by Judge J.P. Stadtmueller on 2/16/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendant HSU Provider DISMISSED from action. Plaintiff PERMITTED to proceed on claim o f deliberate indifference to serious medical needs, in violation of the Eighth Amendment, against Defendant Sgt. Peterson. Copies of Plaintiff's Complaint and this Order to be electronically SENT to Wisconsin DOJ for service on Defendant, who sh all FILE a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT the balance of the filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Matthew T. Vanpietersom and Warden at Waupun Correctional Institution) (jm) Modified on 2/16/2018 (jm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MATTHEW T. VANPIETERSOM,
Plaintiff,

v.

SGT. PETERSON and HSU
PROVIDER,

Case No. 18-CV-60-JPS

ORDER

Defendants.
Plaintiff Matthew J. Vanpietersom, who is incarcerated at Waupun
Correctional Institution, 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 $5.54. 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
“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
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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 since 2012, he has “been on control all meds,”
which suggests to the Court that distribution of medications to him is more
tightly controlled than for other inmates. (Docket #1 at 2). Plaintiff explains
that packs of certain medication are not permitted in his cell. Id. Despite this
restriction, Defendant Sgt. Peterson (“Peterson”) gave Plaintiff a sixty-pill
pack of Naproxen on September 11, 2017. Id. Plaintiff promptly took every
pill in the pack. Id. Plaintiff was taken to the hospital, where he had to stay
in the ICU overnight. Id. at 2-3. Plaintiff says that this incident happened
because the guards “simpl[y] don’t care.” Id. at 3.
The Eighth Amendment provides, inter alia, that prisoners are
entitled to a minimal level of healthcare while in custody. Petties 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
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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
response to it.” Ayoubi v. Dart, No. 17-1561, 2018 WL 671152, at *2 (7th Cir.
Feb. 2, 2018).

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Viewing Plaintiff’s allegations in a light most favorable to him, he
may proceed against Peterson for a claim of deliberate indifference. Plaintiff
alleges that he had serious medical conditions, both in his medication
restriction and his later hospitalization. He further alleges that his
medication intake was restricted for years prior to the September 2017
incident. The Court infers from this that Peterson knew he should not give
Plaintiff the full pack of Naproxen. The Court further infers that Peterson
knew that giving Plaintiff the pack created a substantial risk that Plaintiff
would overdose and suffer severe injury. Whether these inferences are
ultimately supported by fact must be left for a later time. Plaintiff may not
proceed against the unnamed “HSU Provider,” however. That person is not
mentioned anywhere in the body of the Complaint.
In sum, the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Deliberate indifference to Plaintiff’s
serious medical needs on September 11, 2017, in violation of the Eighth
Amendment, against Defendant Sgt. Peterson.
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 Defendant HSU Provider be and
the same is hereby DISMISSED from this action;
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 the state
defendant;
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IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court, the
defendant 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
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;
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:

The Prisoner E-Filing Program is in effect at Columbia Correctional
Institution, Dodge Correctional Institution, Green Bay Correctional Institution,
Oshkosh Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility.
1

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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.
Dated at Milwaukee, Wisconsin, this 16th day of February, 2018.
BY THE COURT:

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

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