Szopinski v. Staniec et al

Filing 7

SCREENING ORDER re 6 Amended Complaint signed by Judge J.P. Stadtmueller on 7/13/2018. Defendant Jeremy L. Staniec is DISMISSED from this action. Plaintiff is PERMITTED to proceed on claims against Defendants Crystal Marchant, CO Strunz, John Ko ontz, Gwendolyn A. Vick, CO Muhlenberg, and CO Gotterschalk for deliberate indifference to serious medical needs in violation of the Eighth Amendment. Copies of Plaintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. See Order for further details. (cc: all counsel, via mail to Kirk Szopinski and Warden at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KIRK SZOPINSKI,
Plaintiff,
Case No. 18-CV-437-JPS

v.
JEREMY L. STANIEC, JOHN KOONTZ,
CO MUHLENBERG, CO
GOTTERSCHALK, CO STRUNZ,
GWENDOLYN A. VICK, and CRYSTAL
MARCHANT,

ORDER

Defendants.
Plaintiff, who is incarcerated at Waupun Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). Plaintiff then filed an amended complaint,
which differs little from the original complaint but is typed, as opposed to
handwritten. (Docket #6). The amended complaint supersedes the original
complaint and is the governing pleading in this case. See Massey v. Helman,
196 F.3d 727, 735 (7th Cir. 1999). Plaintiff has paid the filing fee in full.
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. 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); 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) (citations omitted); accord 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 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)); see Christopher v. Buss, 384
F.3d 879, 881 (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. (citing Twombly, 550
U.S. at 556). The complaint allegations “must be enough to raise a right to

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relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted); Christopher, 384 F.3d at 881.
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. § 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 on January 6, 2018, at about 1:00 a.m., he yelled
from his cell to John Koontz (“Koontz”), a correctional sergeant, and
Gwendolyn Vick (“Vick”), a nurse, telling them that he intended to harm
himself and wanted to be placed on observation status. (Docket #6 at 2).
Koontz and Vick did not attend to Plaintiff. Id.
Plaintiff then activated the emergency call button in his cell. Id.
Correctional Officer Muhlenberg (“Muhlenberg”) answered the call, and
Plaintiff told him that he was going to harm himself by swallowing his
eyeglasses. Id. Plaintiff asked to be placed on observation status. Id.
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Muhlenberg told Plaintiff he did not care what Plaintiff intended to do
because he had other things to do. Id. Plaintiff then broke the frames of his
glasses and swallowed one of the bows. Id. He activated his emergency call
button again and informed Muhlenberg that he swallowed part of his
glasses and that he was going to cut himself and swallow the other parts of
his glasses. Id. at 3.
Correctional Officer Gotterschalk (“Gotterschalk”) then responded
to Plaintiff’s cell. Id. Plaintiff threw broken pieces of his glasses at the cell
door and told Gotterschalk that he had already swallowed another part of
his glasses. Id. Plaintiff threatened to swallow additional parts of his glasses
if he was not put on observation status. Id. Gotterschalk left Plaintiff’s cell
without saying anything, and Plaintiff swallowed another part of his
glasses. Id. Gotterschalk returned to Plaintiff’s cell and Plaintiff told him
that he swallowed the other bow of his glasses. Id. Gotterschalk left
Plaintiff’s cell. Id.
Shortly thereafter, Lieutenant Jeremy Staniec (“Staniec”) arrived at
Plaintiff’s cell. Id. Plaintiff described to Staniec the events of that morning,
and Plaintiff and Staniec had a disagreement about whose fault it was that
nothing was done to help Plaintiff. Id. Plaintiff was removed from his cell
and placed in a strip cell. Id.
About an hour and a half later, around 3:00 a.m., Plaintiff was
examined by Vick. Id. at 4. She told Plaintiff that if he vomited or coughed
up blood he should alert staff immediately, who would then alert the
Health Services Unit (“HSU”). Id.
Later that day, at about 1:45 p.m., Plaintiff vomited blood and
activated his emergency call button in his cell. Id. Correctional Officer
Strunz (“Strunz”) responded and Plaintiff told him about having
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swallowed glasses pieces earlier and told him that he had just vomited
blood. Id. Strunz did not notify HSU or anyone else. Id. Plaintiff was then
put on observation status, though he does not say who caused that to
happen. Id.
On January 8, 2018, Plaintiff was seen by Torria Van Buren (“Van
Buren”), who is not a defendant, for an evaluation to determine if he could
be removed from observation status. Id. She told Plaintiff she needed to
consult with HSU because parts of Plaintiff’s glasses were still in his
stomach. Id. Van Buren left and then returned to Plaintiff’s cell sometime
later, stating that she spoke to Crystal Marchant (“Marchant”), a nurse and
the manager of the HSU. Id. They did not yet know if they could remove
Plaintiff from observation status. Id.
On January 9, 2018, DeBlanc, whose first name is not provided and
who is not a defendant, informed Plaintiff that she had spoken to Van Buren
about Plaintiff’s situation. Id. Van Buren said Marchant had decided that
the HSU was not going to do any medical procedure to remove the parts of
the glasses Plaintiff ingested. Id. at 4. Marchant also would not allow
Plaintiff to go to the hospital to get the glasses pieces removed from his
stomach. Id. at 5. Plaintiff alleges that the glasses pieces stayed in his
abdomen for three months. Id.
On these allegations, Plaintiff seeks to bring claims against all
defendants (Marchant, Staniec, Koontz, Muhlenberg, Gotterschalk, Vick,
and Strunz) under the Eighth Amendment for deliberate indifference to his
serious medical need. Id. at 5–6.
Plaintiff’s amended complaint crosses the low threshold set at
screening to state a claim for deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment. To sustain such a claim,
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Plaintiff must show: (1) an objectively serious medical condition; (2) that
Defendant knew of the condition and was 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). To show that a
delay in providing treatment is actionable under the Eighth Amendment,
Plaintiff must also provide evidence that the delay exacerbated his injury
or unnecessarily prolonged pain. Petties v. Carter, 836 F.3d 722, 730–31 (7th
Cir. 2016).
First, at the present stage, the Court finds that Plaintiff states a claim
against Marchant and Strunz for deliberate indifference to his serious
medical need resulting from having swallowed parts of his eyeglasses.
Presumably, swallowing the bows of eyeglasses is potentially very
destructive to a person’s body; therefore, for the purposes of screening,
Plaintiff has alleged a serious medical need. As to Strunz, Plaintiff has
alleged that he knew of this need and that Plaintiff had vomited blood but
did nothing about it. As to Marchant, Plaintiff has alleged that she knew of
this need and chose not to provide treatment. Marchant’s decision might
ultimately be explained as the proper exercise of medical discretion, or at
worst mere negligence, but that issue must be left for factual development.
Finally, although Plaintiff does not describe his injury in detail, he alleges
he has suffered long-term pain and suffering.

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Plaintiff has also stated a claim for deliberate indifference to his risk
of self harm against Koontz, Vick, Muhlenberg, and Gotterschalk. A
prisoner who is at a substantial risk of committing suicide or seriously
injuring himself faces a “substantial risk of serious harm.” Cavalieri v.
Shepard, 321 F.3d 616, 620–21 (7th Cir. 2003). Plaintiff alleges that Koontz,
Vick, Muhlenberg and Gotterschalk knew Plaintiff intended to harm
himself and wanted to be placed on observation status but did nothing to
prevent him from harming himself, which he ultimately did. These
allegations pass the low bar of screening to state a claim for relief.
Plaintiff will not be permitted to proceed against Staniec. Plaintiff’s
only allegations involving Staniec are that Staniec arrived at Plaintiff’s cell
after he had swallowed his glasses and bickered with Plaintiff about whose
fault it was before Plaintiff was sent to a strip cell for observation. Even if
Plaintiff does not like the way Staniec spoke to him, he has not alleged that
Staniec stood in the way of Plaintiff receiving treatment for a medical need.
Thus, Plaintiff will be permitted to proceed on claims against
Marchant and Strunz for deliberate indifference to his serious medical need
stemming from Plaintiff swallowing of his eyeglasses, and against Koontz,
Vick, Muhlenberg, and Gotterschalk for deliberate indifference to his
serious medical need stemming from his threat of self harm. 28 U.S.C. §
1915A(b).
Accordingly,
IT IS ORDERED that defendant Jeremy Staniec be and the same is
hereby DISMISSED;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s Amended Complaint and this Order are being
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electronically sent today to the Wisconsin Department of Justice for service
on Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants shall file a responsive pleading to the Amended Complaint
within sixty (60) days of receiving electronic notice of this Order;
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. If the
plaintiff is no longer incarcerated at a Prisoner E-Filing 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.
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.

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Dated at Milwaukee, Wisconsin, this 13th day of July, 2018.
BY THE COURT:

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

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