McDaniel v. Waupun Correctional Institution

Filing 15

SCREENING ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that McDaniel's 3 Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. IT IS FURTHER ORDERED that McDaniel's 11 and 12 MOTIONS to Use Rel ease Account for Initial Partial Filing Fee are DENIED AS MOOT. IT IS FURTHER ORDERED that on or before May 7, 2018, McDaniel shall file an amended pleading curing the defects in the original complaint as described herein. (cc: all counsel, via US mail to Plaintiff with complaint form and Warden at Waupun Correctional) (blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MILTON MCDANIEL,
Plaintiff,
v.

Case No. 18-CV-208

WAUPUN CORRECTIONAL INSTITUTION,
Defendant.
DECISION AND ORDER SCREENING PLAINTIFF’S COMPLAINT
Milton McDaniel, who is representing himself, filed a civil rights complaint pursuant
to 42 U.S.C. § 1983 alleging that the defendant violated his constitutional rights by not
transferring him to the behavioral health unit (BHU) due to his mental health. He has also
filed a motion seeking leave to proceed without prepayment of the filing fee, two motions
requesting use of his release account to pay his initial partial filing fee, and a motion to
appoint counsel. I will address each in turn.
As an initial matter, 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.

1.

Motion for Leave to Proceed without Prepayment of the Filing Fee

The Prison Litigation Reform Act applies to this case because McDaniel 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 the plaintiff 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.
McDaniel filed a motion to proceed without prepayment of the filing fee on February
12, 2018, and just days later filed a certified copy of his prisoner trust account statement.
The statement showed that the average monthly deposit of his account was $10.83 and the
average monthly balance was $0.01. Based on this information, on February 23, 2018, I
ordered McDaniel to forward to the Clerk of Court $2.17 (20 percent of $10.83) as an initial
partial filing fee. McDaniel then filed two motions requesting use of his release account to
pay his initial partial filing fee because he does not have adequate funds in his regular
account.
Review of McDaniel’s trust account confirms that he lacks the assets and means in
his regular account to pay the initial partial filing fee. Given the reason for the release
account—to be used upon the prisoner’s release from custody upon completion of his
sentence—and the fact that McDaniel’s trust account shows his lacks the funds to pay the
initial partial filing fee, I will waive the fee. See Wilson v. Anderson, Case No. 14-C-798, 2014
WL 3671878 at *3 (E.D. Wis. July 23, 2014) (citing Wis. Adm. Code § DOC 309.466).

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McDaniel is still obligated to pay the full filing fee, but he may do so over time pursuant to
the statutory formula set forth in 28 U.S.C. § 1915(b)(2). See 28 U.S.C. § 1915(b)(1).
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
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.

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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)).
The Eighth Amendment requires the government “to provide medical care for those
whom it is punishing by incarceration.” Snipes v. Detella, 95 F.3d 586, 590 (7th Cir. 1996)
(quoting Estelle, 429 U.S. at 103). To prevail on an Eighth Amendment claim, a prisoner
must show that prison officials were deliberately indifferent to his serious medical needs.
Estelle, 429 U.S. at 106. A serious medical need is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would
easily recognize the necessity for a doctor's attention.” Wynn v. Southward, 251 F.3d 588,
593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)).
As for the Eighth Amendment's subjective component, the Supreme Court has held
that deliberate indifference requires that “the 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.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Inadvertent error,
negligence, gross negligence or even ordinary malpractice are insufficient grounds for
invoking the Eighth Amendment. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996); see also
Snipes, 95 F.3d at 590-91. Indeed, a prison official has a sufficiently culpable state of mind
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when the official “knew of a substantial risk of harm to the inmate and acted or failed to act
in disregard of that risk.” Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006) (citing Walker
v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002)). Thus, deliberate indifference in the denial
or delay of medical care is evidenced by a defendant's actual intent or reckless disregard.
McDaniel alleges that the “Waupun Correctional Institution employees” violated his
Eighth Amendment right to medical care by not transferring him to BHU. Specifically, he
states: “Relief wanted! Mentality disable inmate that’s been institutionalized for over eight
years and the prison guards [failed] to put inmate in BHU the inmate is a mentality disturb
inmate that all [stressed] out suing for $485,000.00.” Docket # 1 at 2. McDaniel’s complaint
has at least three deficiencies.
First, he fails to name the proper defendant. Section 1983 allows a plaintiff to sue
any “person” who violates his civil rights under color of state law. The WCI is not a proper
defendant, because it is building and not a person that may sued under § 1983. Nava v.
Sangamon County Jail, 2014 WL 1320259, *2 (C.D. Ill. April 2, 2014); Wright v. Porter
County, 2013 WL 1176199, *2 (N.D. Ill. Mar. 19, 2013) (“Wright also sued the jail itself, but
this is a building, not a ‘person’ or even a policy-making body that can be sued for
constitutional violations.”); Phillips v. Sangamon County Jail, 2012 WL 4434724, *2 (C.D. Ill.
Sept. 24, 2012).
Second, McDaniel alleges in his complaint that it was actually WCI officials who
violated his constitutional rights by failing to transfer him to BHU, but that failing is not a
constitutional violation. A prisoner has no liberty interest in a specific correctional facility, a
specific wing of that facility, or a specific cell in a specific area of that facility, unless such an

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interest is created under state laws or regulations. See generally, Parker v. Lane, 688 F.Supp.
353, 355 (N.D.Ill. 1988).
Third, it seems as if McDaniel is asserting that medical staff recommended he be
transferred to BHU in 2010, as shown by the medical document he attached to his
complaint that recommends he be placed in a “special management unit.” However, it is
unclear to me what officials, if any, were aware of this recommendation, who denied the
transfer, and whether McDaniel suffered any harm because he was not moved to BHU
considering it has been nearly eight years since the recommendation was made. See Farmer,
511 U.S. at 837. I, however, will allow McDaniel to amend his complaint to provide this
additional information and clarify his allegations regarding his placement in BHU.
When writing his amended complaint, McDaniel should provide me with enough
facts to answers to the following question: 1) Who violated his constitutional rights?; 2)
How did each person violate his rights?; 3) Where did each person violate his rights?; and 4)
When did each person violate his rights? McDaniel’s complaint does not need to be long, or
contain legal language or citations to statutes or cases, but it does need to provide me and
each defendant with notice of what each defendant allegedly did to violate his rights.
I am enclosing a copy of the court’s complaint form and instructions. McDaniel
should write the word “AMENDED” in front of the word “COMPLAINT” at the top of
the first page, and then put the case number for this case—18-CV-208—in the field for “Case
Number.” He must list all of the defendants in the caption of the complaint. He must use
the spaces on pages two and three to allege the key facts that give rise to the claims he
wishes to bring, and to describe which defendants he believes committed the violations that
relate to each claim. If the space is not enough, he may use up to five additional sheets of
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paper (putting page numbers on each additional page). The amended complaint takes the
place of the prior complaint, and must be complete in itself; McDaniel cannot simply say,
“Look at my first complaint for further information.” See Duda v. Bd. of Educ. of Franklin Park
Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998).
If McDaniel files the amended complaint by the deadline, I will screen it under 28
U.S.C. §1915A.
3.

Motion to Appoint Counsel

Lastly, McDaniel has motioned for appointment of counsel. In a civil case, I have
discretion to decide whether to recruit a lawyer for someone who cannot afford one. Navejar
v. Iyola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C §1915(e)(1); Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has to make a
reasonable effort to hire private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th
Cir. 2007). After which, I decide “whether the difficulty of the case—factually and legally—
exceeds the particular plaintiff’s capacity as a layperson to coherently present it.” Navejar,
718 F.3d at 696 (citing Pruitt, 503 F.3d at 655). To decide that, I look, not only at the
person’s ability to try his case, but also at his ability to perform other “tasks that normally
attend litigation,” such as “evidence gathering” and “preparing and responding to motions.”
Id.
In his motion, McDaniel does not state that he has sought counsel on his own. So I
will deny his motion on that basis. However, even if he had stated such, I would deny his
motion because he has not alleged that he lacks capacity specifically to try his case. He
merely outlines a psychological evaluation reinforcing his diagnosed mental status. He,
however, has filed other motions showing that he has a sufficient understanding of the law
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to amend his complaint without the assistance of counsel. Should the circumstances of the
case or McDaniel’s ability to litigate change, I will consider motions asking me to recruit
pro bono counsel in the future.
NOW, THEREFORE, IT IS ORDERED that McDaniel’s motion for leave to
proceed without prepayment of the filing fee (Docket # 3) is GRANTED.
IT IS ALSO ORDERED that McDaniel’s first and second motions for order to use
release account for initial partial filing fee (Docket # 11, 12) are DENIED AS MOOT.
IT IS FURTHER ORDERED that McDaniel’s motion to appoint counsel (Docket
# 9) is DENIED without prejudice.
IT IS FURTHER ORDERED that on or before May 7, 2018, McDaniel shall file an
amended pleading curing the defects in the original complaint as described herein.
IT IS FURTHER ORDERED that the agency having custody of McDaniel shall
collect from his institution trust account the $350.00 filing fee by collecting monthly
payments from McDaniel’s prison trust account in an amount equal to 20% of the preceding
month's income credited to McDaniel’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 McDaniel is transferred to another institution, county, state, or federal, the
transferring institution shall forward a copy of this order along with McDaniel’s remaining
balance to the receiving institution.
IT IS ALSO ORDERED that a copy of this order be sent to the officer in charge of
the agency where McDaniel is confined.

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IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program,
McDaniel shall submit all correspondence and case filings to institution staff, who will scan
and e-mail documents to the Court.1 If McDaniel 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 COURT’S
CHAMBERS. It will only delay the processing of the matter.
McDaniel is further advised that failure to make a timely submission may result in
the court continuing with this litigation on the claims on which the court allowed McDaniel
to proceed. 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 9th day of April, 2018.
BY THE COURT:
s/Nancy Joseph______________
NANCY JOSEPH
United States Magistrate Judge

 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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