Shaw v. Doe et al

Filing 8

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 3/31/2021. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the ba lance of filing fee in accordance with this Order. CASE DISMISSED with prejudice under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim. Clerk of Court to DOCUMENT that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). See Order. (cc: all counsel, via mail to Terrance J Shaw and Warden at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE J. SHAW

v.

Plaintiff,

Case No. 20-CV-294-JPS

LAURA FRAZIER and JOHN/JANE
DOE,

ORDER

Defendants.
Plaintiff Terrance J. Shaw, an inmate confined at Racine Correctional
Institution (“RCI”), filed a pro se complaint under 42 U.S.C. § 1983 alleging
that his rights under the Eighth Amendment were violated. This order
resolves Plaintiff’s motion for leave to proceed without prepaying the filing
fee and screens his complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. 28 U.S.C.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On February 25, 2020, the Court ordered Plaintiff to pay an initial
partial filing fee of $70.04. (Docket #5). Plaintiff paid that fee on March 13,
2020. The Court will grant Plaintiff’s motion for leave to proceed without

prepaying the filing fee. He must pay the remainder of the filing fee over
time in the manner explained at the conclusion of this order.
2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner raises 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).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). To state a claim, a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true,
to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows a court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
the laws of the United States, and that whoever deprived him of this right
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was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
2.2

Plaintiff’s Allegations

Plaintiff alleges that after his heart surgery on October 12, 2016, he
was not provided his prescribed medication by RCI, where he was
incarcerated. (Docket #1 at 1). Plaintiff, despite requesting refills on time,
had many lapses in being provided his medication over the next eight
months. (Id. at 1–5).
Plaintiff’s complaint does not disclose that he filed another case
containing precisely these same allegations in December 2017.1 In that prior
case, this Court screened Plaintiff’s amended complaint and allowed him
to proceed on a claim of deliberate indifference to his serious medical needs,
in violation of the Eighth Amendment, against Kristin Vasquez, Laura
Frazier, and Paul Kemper (“Defendants”). (18-CV-158, Docket #28).
Defendants moved for summary judgment. The Court granted Defendants’
motion for summary judgment on September 20, 2019, finding that
Defendants were not deliberately indifferent to Plaintiff’s serious medical
condition and dismissing the case with prejudice. (Id., Docket #59). Plaintiff
did not appeal the dismissal.
Plaintiff originally filed that prior action in the Western District of
Wisconsin. Terrance J. Shaw v. Kristin Vasquez, et al., 3:17-CV-913, (Docket #1). The
case was transferred to the Eastern District on January 30, 2018. Terrance J. Shaw v.
Kristin Vasquez, et al., 18-CV-158, (Docket #11). This Court was assigned the case
on February 15, 2018.
1

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2.3

Analysis

The Court is unable to reach the merits of Plaintiff’s instant case
because this action is barred by res judicata. The doctrine of res judicata, or
claim preclusion, prohibits a party from re-litigating a case which had
previously been dismissed with prejudice. Czarniecki v. City of Chicago, 633
F.3d 545, 548 (7th Cir. 2011). Res judicata “has three ingredients: a final
decision in the first suit; a dispute arising from the same transaction
(identified by its ‘operative facts’); and the same litigants (directly or
through privity of interest).” Id. (quotation omitted). All three are present
here.
First, Plaintiff’s prior case concluded with a final order and judgment
dismissing the action with prejudice. (18-CV-158, Docket #59, #60). Next,
Plaintiff’s prior case involved the same conduct at issue in the present
action. (18-CV-158, Docket #27; 20-CV-294, Docket #1). In the present case,
Plaintiff filed a complaint with a nearly identical statement of facts as that
in Plaintiff’s amended complaint in his prior case. (20-CV-294, Docket #1 at
1–4; 18-CV-158, Docket #27 at 2–9). Specifically, in both cases Plaintiff
alleges deliberate indifference to his serious medical condition, in violation
of the Eighth Amendment, when Plaintiff was not provided his prescribed
medication after his heart surgery. (Id.) Finally, Plaintiff’s prior case named
three defendants—Kristin Vasquez, Laura Frazier, and Paul Kemper. (18CV-158, Docket #27). In the present case, the defendants are Laura Frazier,
Jane Doe, and John Doe. (20-CV-294, Docket #1). It is clear from comparing
Plaintiff’s amended complaint in the prior case with his complaint in the
present action that Plaintiff has merely swapped out Kristin Vasquez and
Paul Kemper for Jane Doe and John Doe. (18-CV-158, Docket #27; 20-CV294, Docket #1). Plaintiff’s attempt to make the present case appear different
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from his prior case has not succeeded. Plaintiff cannot simply re-file the
same action after the first is dismissed with prejudice, hoping for a different
result the second time. Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir. 2002)
(“In civil litigation, the final resolution of one suit is conclusive in a
successor [suit], whether or not that decision was correct. If Gleash wanted
to contest the validity of the district judge’s decision—either on the merits
or on the ground that he should have been allowed to re-plead—he had to
appeal.”).
3.

CONCLUSION
The Court will not provide Plaintiff a second bite at the apple and

will dismiss this action with prejudice. The Court will also assess a strike
against Plaintiff in accordance with the PLRA. The Court gives Plaintiff a
further, final warning. If he continues to file new cases regarding these
events, Plaintiff will not only be subject to additional strikes, but he may be
subject to sanction.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED with prejudice under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1) because the complaint fails to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $279.96 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
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credited to his 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 case. If Plaintiff is transferred to another
county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined.
This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty days of the
entry of judgment. See Fed. R. of App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the thirty-day deadline. See Fed.
R. App. P. 4(a)(5)(A).
Under limited circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for
relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within
twenty-eight days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
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The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of March, 2021.
BY THE COURT:

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

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