Jackson v. Guzman et al

Filing 13

ORDER signed by Chief Judge Pamela Pepper on 10/29/2020. Clerk of Court to REOPEN case. 2 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect $346.25 balance of fili ng fee from plaintiff's prison trust account under 28 USC §1915(b)(2). Plaintiff's complaint fails to state claim; plaintiff may file amended complaint by 12/4/2020, failure to file by deadline will result in dismissal, strike. (cc: all counsel, via mail to Warden and Nugene Jackson (with blank complaint form and "Answers to Prisoner Litigants' Common Questions") at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
NUGENE JACKSON,
Plaintiff,
v.

Case No. 20-cv-475-pp

C.O. GUZMAN, et al.,
Defendants.
______________________________________________________________________________
ORDER REOPENING CASE, GRANTING PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2) AND
SCREENING COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
On April 23, 2020, the court dismissed the case without prejudice because
the plaintiff had not paid the initial partial filing fee. Dkt. No. 7. The order
stated that the plaintiff could submit the fee and move to have the case
reopened within twenty-one days of the entry of the order. Id. at 2. The court
received the initial partial filing fee on May 4, 2020. The court will reopen the
case, grant the plaintiff’s motion for leave to proceed without prepaying the
filing fee, dkt. no. 2, and screen the complaint, dkt. no. 1.
I.

Motion for Leave to Proceed without Prepaying the Filing Fee
(Dkt. No. 2)
The Prison Litigation Reform Act (“PLRA”) applies to this case because

the 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 then must pay the balance of the $350 filing fee over
time, through deductions from his prisoner account. Id.
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On March 26, 2020, the court ordered the plaintiff to pay an initial
partial filing fee of $ 3.75. Dkt. No. 5. The court received that fee on May 4,
2020. The court will grant the plaintiff’s motion for leave to proceed without
prepaying the filing fee and require him to pay the remainder of the filing fee
over time in the manner explained at the end of this order.
II.

Screening the Complaint
A.

Federal Screening Standard

Under the Prison Litigation Reform Act (“PLRA”), the court must screen
complaints brought by prisoners seeking relief from a governmental entity or
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 it applies when considering whether to dismiss a case
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 Atlantic 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
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Twombly, 550 U.S. at 556). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints 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)).
B.

The Plaintiff’s Allegations

The plaintiff is an inmate at Racine Correctional Institution (“RCI”). Dkt.
No. 1. Defendants Guzman and Sabel are correctional officers at RCI. Id. at 2.
The plaintiff alleges that on October 4, 2019 at around 1:00 p.m., he was
walking on the right side of the county road eastbound from his unit. Id. at 2.
He says that Officer Sabel was driving a golf cart down the center line of the
county road, traveling in the same direction that the plaintiff was walking. Id.
C.O. Guzman was in the cart with Sabel. Id. at 3. He asserts that Sabel drove
up behind him—the plaintiff did not see Sabel approaching and because of the
“noise from the cart” did not hear him. Id. at 2. The plaintiff says that as Sabel
tried to drive past him, Guzman opened the right-side door; the door hit the
plaintiff, injuring his left leg. Id. The plaintiff describes limping back to the
housing unit to report the incident to his unit sergeant, who reported the
incident to his supervisor. Id. at 2-3. The plaintiff was seen by Nurse Street and
photos were taken of his leg. Id. at 3.
The plaintiff says that his left leg was “swollen, bruised and scar[r]ed,”
and that he suffered pain throughout the situation. Id. at 3. He says it was
hard for him to do simple tasks, like getting to the phone, using the bathroom
and walking through the line for meals; he had to get help from other inmates.
Id. The plaintiff explains that his right leg has been amputated, so he only
had one “good” leg for mobility. Id. at 3. He says that at the time he wrote his
complaint—four months later—he still was having problems, such as pain in
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the leg and the need to use a wheelchair. Id. He was scheduled to see a doctor
March 3, 2020. Id. For relief, the plaintiff seeks monetary damages. Id. at 4.
C.

Analysis

To state a claim for relief under 42 U.S.C. §1983, the 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 was acting
under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793,
798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)).
The plaintiff alleges that Guzman hit the plaintiff’s leg with a golf cart
door. He does not explain why he believes this violated his constitutional
rights. To state a claim for use of excessive force in violation of the Eighth
Amendment, for example, a plaintiff needs to show that the person applying
the force—in this case, Guzman—“evinced such wantonness with respect to the
unjustified infliction of harm as tantamount to a knowing willingness that it
occur.” McCottrell v. White, 933 F.3d 651, 663 (7th Cir. 2019) (quoting Whitley
v. Albers, 475 U.S. 312, 321 (1986)). The plaintiff has not alleged that Guzman
deliberately hit the plaintiff with the door. The plaintiff states that he continues
to have medical problems with his leg. He does not allege, however, that
Guzman or Sabel ignored his medical problems after the incident, delayed
providing treatment or refused to provide treatment—in other words, he has
not alleged that they demonstrated deliberate indifference to his serious
medical need. See Lewis v. McLean, 864 F.3d 556, 563–64 (7th Cir. 2017)
(explaining the Eighth Amendment deliberate indifference standard). Perhaps
the plaintiff means to allege that Guzman should have been more careful when
he opened the door without first looking around, or that Sabel should have
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warned the plaintiff as they were pulling up behind him in the golf cart, but
those are claims of negligence, and negligence is not sufficient to state a
constitutional claim under §1983. Wilson v. Adams, 901 F.3d 816, 820 (7th
Cir. 2018).1
Because the complaint does not state a claim that Sabel or Guzman
violated the plaintiff’s constitutional rights, the court must dismiss it. But the
court will give the plaintiff an opportunity to file an amended complaint that
provides more information about what happened to him on October 4, 2019
and why he thinks Guzman and Sabel violated his constitutional rights. The
court is enclosing with this order a guide for prisoners who are representing
themselves that explains how to file a complaint. The court also will include a
blank prisoner complaint form. The court will require the plaintiff to use that
form to file his amended complaint. See Civil L. R. 9 (E.D. Wis.).
If the plaintiff chooses to file an amended complaint, he must write the
word “Amended” at the top of the first page, in front of the word “Complaint.”
He must write the case number—20-cv-475—in the space provided on the first
page. He must use the lines on pages two and three, under “Statement of
Claim,” to explain what actions Sabel took and what actions Guzman took and
why he believes those actions violated his constitutional rights. The amended
complaint will take the place of the original complaint, so it must be complete
in itself; the plaintiff must not leave out any facts he wants the court to
consider.
If the plaintiff files an amended complaint by the deadline below, the
court will screen it as required by 28 U.S.C. §1915A. If the plaintiff does not file

A plaintiff who wishes to sue someone for negligence can bring such a lawsuit
in state court.
1

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an amended complaint by the deadline, the court will issue a final order of
dismissal on the next business day and will assess a strike against the
plaintiff. 28 U.S.C. §1915(g). If the plaintiff decides, after reading this order,
that he is not able to state a claim, he may avoid incurring a strike by notifying
the court that he would like to voluntarily dismiss the case.
III.

Conclusion
The court REOPENS this case based on the plaintiff’s payment of the

initial partial filing fee.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepaying the filing fee. Dkt. No. 2.
The court ORDERS that the agency that has custody of the plaintiff shall
collect from his institution trust account the $346.25 balance of the filing fee
by collecting monthly payments from the plaintiff’s prison trust account in an
amount equal to 20% of the preceding month’s income credited to the 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 agency shall clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the
transferring institution shall forward a copy of this order, along with the
plaintiff's remaining balance, to the receiving institution. The court will send a
copy of this order to the officer in charge of the agency where the plaintiff is
confined.
The court CONCLUDES that the plaintiff’s complaint fails to state a claim
and DISMISSES the complaint. The court ORDERS that the plaintiff may file
an amended complaint that complies with the instructions in this order. If the
plaintiff chooses to file an amended complaint, he must do so in time for the
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court to receive it by the end of the day on December 4, 2020. If the court
does not receive a notice of voluntary dismissal or an amended complaint by
the end of the day on December 4, 2020, the court will issue a final order of
dismissal and the plaintiff will incur a strike.
The court ORDERS that plaintiffs who are inmates at Prisoner E-Filing
Program institutions2 must submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the court. Plaintiffs
who are inmates at all other prison facilities must submit the original
document for each filing to the court to the following address:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises the plaintiff that if he fails to file documents or take
other required actions by the deadlines the court sets, the court may dismiss
the case based on his failure to diligently pursue it. 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, which could affect the legal
rights of the parties.
The court includes with this order a copy of the guide entitled, “Answers

The Prisoner E-Filing Program is mandatory for all inmates of Green Bay
Correctional Institution, Waupun Correctional Institution, Dodge Correctional
Institution, Wisconsin Secure Program Facility, Columbia Correctional
Institution, and Oshkosh Correctional Institution.
2

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to Prisoner Litigants’ Common Questions” and a blank prisoner complaint
form.
Dated in Milwaukee, Wisconsin this 29th day of October, 2020.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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