Wilkerson v. Eplett et al

Filing 7

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 9/25/2024. 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 the filing fee as specified. By 10/16/2024, Plaintiff to FILE an amended complaint; failure to timely do so will result in dismissal of this action. See Order. (cc: all counsel, via mail to Dwight Wilkerson with prisoner amended complaint form and prisoner/pro se guides and to Warden (order only) at Oshkosh Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DWIGHT WILKERSON,
Plaintiff,
v.

Case No. 24-CV-791-JPS

WARDEN CHERYL EPLETT, TRACY
THOMPSON, MS. LUDWIG, MS.
PELKY, D. PROEHL, K. WIESNER,
and MICHAEL MILLER,

ORDER

Defendants.

Plaintiff Dwight Wilkerson, an inmate confined at Oshkosh
Correctional Institution (“OCI”), filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that Defendants violated his constitutional rights. ECF 1.
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. Id.
§ 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 July 11, 2024, the Court ordered Plaintiff to pay an initial partial
filing fee of $31.10. ECF No. 6. Plaintiff paid that fee on July 25, 2024. The

Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 2. He must pay the remainder of the filing fee over
time in the manner explained at the end 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)). 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 brings this case against Defendants Warden Cheryl Eplett,
Tracy Thompson, Ms. Ludwig, Ms. Pelky, D. Proehl, K. Wiesner, and
Michael Miller. ECF No. 1 at 1. On April 22, 2024, Plaintiff was walking out
the front door of the R-Building living center. Id. at 2. While proceeding on
the northwest-path to main street, he stepped on a raised cement slab that
made his foot roll to the side. Id. This incident caused Plaintiff to fall to the
pavement and he landed on his left shoulder, hip, and knee. Id. He felt a
snapping in his neck. Id. Plaintiff experienced unbearable pain, and he put
in a blue slip to be seen by medical staff on April 23, 2024. Id. Plaintiff was
seen on April 24, 2024; he was charged $7.50 for the visit and was given
Acetaminophen, muscle rub, and an ice bag. Id. None of the treatment
helped Plaintiff’s pain. Id.
Plaintiff put in another blue slip on April 28, 2024, for the same pain.
Id. Plaintiff was seen on April 29, 2024. Id. Plaintiff did not refuse medical
treatment at this appointment; instead, he simply refused to pay another
$7.50 co-pay to treat the same injury. Id. at 3. Plaintiff maintains that HSU
was wrong to charge him twice for the same issue. Id. Medical staff refused
to put in a referral to see a doctor or take X-rays. Id. Plaintiff filled out
additional blue slips for medical treatment on May 8, 18, 19 and on June 12,
15, and 16. Id. Plaintiff was seen but all the nurse did was take notes. Id.
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Plaintiff is still in pain from this incident and has not received adequate
medical treatment. Id.
2.3

Analysis

The Court finds that Plaintiff may not proceed on an Eighth
Amendment conditions of confinement claim. A prisoner’s claim of
unconstitutional conditions of confinement is analyzed under the Eighth
Amendment’s cruel and unusual punishment clause. See Farmer v. Brennan,
511 U.S. 832, 834 (1994). A prisoner is entitled to live in conditions that do
not amount to “punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).
Detainees are entitled to be confined under humane conditions that provide
for their “basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
“The Constitution does not mandate comfortable prisons, but neither does
it permit inhumane ones[.]” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996).
To establish a constitutional violation with respect to an inmate’s
living conditions, he must be able to demonstrate both: (1) the conditions
were objectively so adverse that they deprived him “of the minimal
civilized measure of life’s necessities,” and (2) the defendants acted with
deliberate indifference with respect to the conditions. Townsend v. Fuchs, 522
F.3d 765, 773 (7th Cir. 2008) (quoting Farmer, 511 U.S. at 834). “Life’s
necessities include shelter, heat, clothing, sanitation, and hygiene items.”
Woods v. Schmeltz, No. 14‐CV‐1336, 2014 WL 7005094, at *1 (C.D. Ill. Dec. 11,
2014) (citing Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006)); see also Budd
v. Motley, 711 F.3d 840, 842–43 (7th Cir. 2013).
The Court does not find that Plaintiff states sufficient factual
allegations to proceed against any defendants for an Eighth Amendment
deliberate-indifference claim. Plaintiff alleges that the walkway was unsafe
and caused him to fall; however, he does not plead facts to show that the
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named defendants were actually aware of this condition. Plaintiff’s
allegations as currently plead at most show negligence, but nothing
indicates that the named defendants knowingly subjected Plaintiff to
unsafe living conditions. As such, the Court finds that Plaintiff fails to state
an Eighth Amendment claim for deliberate indifference. As indicated,
Plaintiff may state a state-law negligence claim. However, in the absence of
a federal claim, the Court cannot exercise supplemental jurisdiction over a
state-law negligence claim. See 28 U.S.C. § 1367(c); Carlsbad Tech., Inc. v. HIF
Bio, Inc., 556 U.S. 635, 639 (2009).
The Court also finds that Plaintiff does not state an Eighth
Amendment claim against any defendants for their deliberate indifference
to his serious medical needs. The Eighth Amendment secures an inmate’s
right to medical care. Prison officials violate this right when they “display
deliberate indifference to serious medical needs of prisoners.” Greeno v.
Daley, 414 F.3d 645, 652 (7th Cir. 2005) (internal quotation omitted).
Deliberate indifference claims contain both an objective and a subjective
component: the inmate “must first establish that his medical condition is
objectively, ‘sufficiently serious,’; and second, that prison officials acted
with a ‘sufficiently culpable state of mind,’ i.e., that they both knew of and
disregarded an excessive risk to inmate health.” Lewis v. McLean, 864 F.3d
556, 562–63 (7th Cir. 2017) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal citations omitted)). “A delay in treating non-life-threatening
but painful conditions may constitute deliberate indifference if the delay
exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Arnett
v. Webster, 658 F.3d 742, 753 (7th Cir. 2011) (citing McGowan v. Hulick, 612
F.3d 636, 640 (7th Cir. 2010)). The length of delay that is tolerable “‘depends

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on the seriousness of the condition and the ease of providing treatment.’”
Id. (quoting McGowan, 612 F.3d at 640).
Here, Plaintiff likely can state an Eighth Amendment claim;
however, he fails to allege facts as to how any defendants were involved in
denying him care. Aside from Warden Eplett, Plaintiff does not even
mention the named defendants in his allegations. For a prison official to be
personally liable, he or she must have participated in some way with the
alleged constitutional violation. Vance v. Peters, 97 F.3d 987, 991 (7th Cir.
1996) (“Section 1983 creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional deprivation.”) (internal
quotation marks and citation omitted). If Plaintiff does not currently know
the names of the staff who denied him treatment, he may refer to them
simply as Doe defendants and he can attempt to identify them at a later
date. However, if Plaintiff names specific defendants, as he did here, he
must explain how each defendant was involved in the alleged
constitutional violation. As such, the Court finds that Plaintiff’s complaint
currently fails to state a claim against any defendants.
The Court will provide Plaintiff the opportunity to file an amended
complaint on or before October 16, 2024. When writing his amended
complaint, Plaintiff should provide the Court with enough facts to answer
the following questions: (1) Who violated his constitutional rights?;
(2) What did each person do to violate his rights?; (3) Where did each
person violate his rights?; and (4) When did each person violate his rights?
Plaintiff’s amended complaint does not need to be long or contain legal
language or citations to statutes or cases, but it does need to provide the

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Court and each Defendant with notice of what each Defendant allegedly
did or did not do to violate his rights.
The Court is enclosing a copy of its amended complaint form and
instructions. Plaintiff must list all of the defendants in the caption of his
amended complaint. He should 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, Plaintiff may use up to five
additional sheets of paper.
Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th
Cir. 1998). In Duda, the appellate court emphasized that in such instances,
the “prior pleading is in effect withdrawn as to all matters not restated in
the amended pleading.” Id. at 1057 (citation omitted). If the amended
complaint is received, it will become the operative complaint in this action,
and the Court will screen it in accordance with 28 U.S.C. § 1915A.
3.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without

prepaying the filing fee, ECF No. 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the complaint fails to state a
federal claim;
IT IS FURTHER ORDERED that Plaintiff may file an amended
complaint that complies with the instructions in this Order on or before
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October 16, 2024. If Plaintiff files an amended complaint by the deadline,
the Court will screen that complaint under 28 U.S.C. § 1915A. If Plaintiff
does not file an amended complaint by the deadline, the Court will dismiss
this case without prejudice based on a lack of subject-matter jurisdiction;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $318.90 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 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;
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined; and
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and a copy of the guides entitled
“Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro
Se Litigants’ Common Questions,” along with this Order.
Dated at Milwaukee, Wisconsin, this 25th day of September, 2024.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge
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Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, 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
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply 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. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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