UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
LANCE LAMAR BOOTH,
Plaintiff,
v. Case No. 20-C-1061
WISCONSIN DEPARTMENT OF CORRECTIONS, DODGE CORRECTIONAL INSTITUTION, and CONRAD MAGNO,
Defendants.
SCREENING ORDER
Plaintiff Lance Lamar Booth, who is currently serving a state prison sentence at Dodge Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on Plaintiff’s motion for leave to proceed without prepaying the full filing fee and to screen the complaint. MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE Plaintiff has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed an initial partial filing fee of $6.99. On August 3, 2020, Plaintiff filed a letter advising the court that he is unable to pay the initial partial filing fee. Therefore, the court waives the initial partial filing fee. Plaintiff’s motion for leave to proceed without prepaying the filing fee will be granted. SCREENING OF THE COMPLAINT The court has a duty to review any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, and dismiss any complaint or portion thereof if the prisoner has raised any 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 screening a complaint, I must determine whether the complaint complies with the Federal Rules of Civil Procedure and states at least plausible claims for which relief may be granted. To state a cognizable claim under the federal notice pleading system, 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 must be at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well as when and where the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions or inactions caused. A complaint must contain sufficient factual matter “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)). “The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “The tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above the speculative level.” Id. at 555 (internal quotations omitted). ALLEGATIONS OF THE COMPLAINT Plaintiff alleges that Conrad Magno, a dentist at Dodge Correctional Institution, performed oral surgery on him. Plaintiff claims that the procedure involved cutting a large portion of
Plaintiff’s bone and that Magno did not use the proper tools to perform the surgery. Plaintiff alleges that the removal of a portion of his bone was not discussed with him and was not part of the pre-authorization form Plaintiff signed. He asserts that, as a result, he has trigeminal nerve damage that causes numbness and chronic pain. THE COURT’S ANALYSIS “To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he or she was deprived of a right secured by the Constitution or the laws of the United States, and that this deprivation occurred at the hands of a person or persons 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 Supreme Court in Estelle v. Gamble held that
prison officials violate the Eighth Amendment when they are deliberately indifferent to a prisoner’s serious medical needs. 429 U.S. 97, 104–05 (1976). This does not mean, however, that every claim of inadequate medical treatment states a violation of the Eighth Amendment. To state a claim for deliberate indifference, the plaintiff must allege “(1) an objectively serious medical condition; and (2) an official’s deliberate indifference to that condition.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). A medical need is considered sufficiently serious if the inmate’s condition “has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (citation omitted). To satisfy the subjective prong of the deliberate indifference standard, an inmate must allege that the defendants actually knew of a substantial risk of harm to the inmate and acted or failed to act in disregard of that risk.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). Deliberate indifference is shown by “something approaching a total unconcern for [the plaintiff’s] welfare in the face of serious risks, or a conscious, culpable refusal
to prevent harm.” Duane v. Lane, 959 F,2d 673, 677 (7th Cir. 1992). Plaintiff’s complaint does not contain any allegations that Magno was deliberately indifferent to Plaintiff’s serious medical needs. Instead, Plaintiff’s allegations suggest that the treatment was negligent or that Magno committed malpractice, but negligence or “malpractice alone is not enough to meet the constitutional standard.” Walker v.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
LANCE LAMAR BOOTH,
Plaintiff,
v. Case No. 20-C-1061
WISCONSIN DEPARTMENT OF CORRECTIONS, DODGE CORRECTIONAL INSTITUTION, and CONRAD MAGNO,
Defendants.
SCREENING ORDER
Plaintiff Lance Lamar Booth, who is currently serving a state prison sentence at Dodge Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on Plaintiff’s motion for leave to proceed without prepaying the full filing fee and to screen the complaint. MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE Plaintiff has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed an initial partial filing fee of $6.99. On August 3, 2020, Plaintiff filed a letter advising the court that he is unable to pay the initial partial filing fee. Therefore, the court waives the initial partial filing fee. Plaintiff’s motion for leave to proceed without prepaying the filing fee will be granted. SCREENING OF THE COMPLAINT The court has a duty to review any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, and dismiss any complaint or portion thereof if the prisoner has raised any 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 screening a complaint, I must determine whether the complaint complies with the Federal Rules of Civil Procedure and states at least plausible claims for which relief may be granted. To state a cognizable claim under the federal notice pleading system, 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 must be at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well as when and where the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions or inactions caused. A complaint must contain sufficient factual matter “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)). “The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). “The tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above the speculative level.” Id. at 555 (internal quotations omitted). ALLEGATIONS OF THE COMPLAINT Plaintiff alleges that Conrad Magno, a dentist at Dodge Correctional Institution, performed oral surgery on him. Plaintiff claims that the procedure involved cutting a large portion of
Plaintiff’s bone and that Magno did not use the proper tools to perform the surgery. Plaintiff alleges that the removal of a portion of his bone was not discussed with him and was not part of the pre-authorization form Plaintiff signed. He asserts that, as a result, he has trigeminal nerve damage that causes numbness and chronic pain. THE COURT’S ANALYSIS “To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he or she was deprived of a right secured by the Constitution or the laws of the United States, and that this deprivation occurred at the hands of a person or persons 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 Supreme Court in Estelle v. Gamble held that
prison officials violate the Eighth Amendment when they are deliberately indifferent to a prisoner’s serious medical needs. 429 U.S. 97, 104–05 (1976). This does not mean, however, that every claim of inadequate medical treatment states a violation of the Eighth Amendment. To state a claim for deliberate indifference, the plaintiff must allege “(1) an objectively serious medical condition; and (2) an official’s deliberate indifference to that condition.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012). A medical need is considered sufficiently serious if the inmate’s condition “has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (citation omitted). To satisfy the subjective prong of the deliberate indifference standard, an inmate must allege that the defendants actually knew of a substantial risk of harm to the inmate and acted or failed to act in disregard of that risk.” Walker v. Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). Deliberate indifference is shown by “something approaching a total unconcern for [the plaintiff’s] welfare in the face of serious risks, or a conscious, culpable refusal
to prevent harm.” Duane v. Lane, 959 F,2d 673, 677 (7th Cir. 1992). Plaintiff’s complaint does not contain any allegations that Magno was deliberately indifferent to Plaintiff’s serious medical needs. Instead, Plaintiff’s allegations suggest that the treatment was negligent or that Magno committed malpractice, but negligence or “malpractice alone is not enough to meet the constitutional standard.” Walker v. Peters, 233 F.3d 494, 499 (7th Cir. 2000); Estelle, 429 U.S. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). In addition, dissatisfaction or disagreement with the method of treatment does not constitute an Eighth Amendment claim of deliberate indifference. See Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (disagreement with medical professionals about treatment needs does not state a cognizable Eighth Amendment claim
under the deliberate indifference standard of Estelle v. Gamble, 429 U.S. 97 (1976)). The reasonable inferences from Plaintiff’s allegations do not support a claim of deliberate indifference. Plaintiff also named the Wisconsin Department of Corrections and the Dodge Correctional Institution as defendants but the complaint contains no allegations against these entities. In any event, the Wisconsin Department of Corrections and the Dodge Correctional Institution are not suable entities because they are not “persons” for the purposes of § 1983. Accordingly, Plaintiff cannot proceed against the Wisconsin Department of Corrections and the Dodge Correctional Institution. Plaintiff’s complaint will therefore be dismissed. If Plaintiff wants to proceed, he must file
an amended complaint curing the deficiencies in the original complaint as described herein. Such amended complaint must be filed on or before September 4, 2020. Failure to file an amended complaint within this time period may result in dismissal of this action. 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, 1056–57 (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 an amended complaint is received, it will be screened pursuant to 28 U.S.C. § 1915A. IT IS THEREFORE ORDERED that Plaintiff’s motion for leave to proceed in forma pauperis (Dkt. No. 2) is GRANTED. IT IS FURTHER ORDERED that on or before September 4, 2020, Plaintiff shall file an amended pleading curing the defects in the original complaint as described herein. IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a blank prisoner
complaint form and a copy of the guide entitled “Guide to Filing Prisoner Complaints Without a Lawyer in the United States District Court for the Eastern District of Wisconsin,” along with this order. IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect from his institution trust account the $350.00 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 the prisoner’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 Plaintiff is transferred to another institution, the transferring institution shall forward a copy of this Order along with Plaintiff’s remaining balance to the receiving institution. IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of the agency where the inmate is located.
IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing Program institutions must submit all correspondence and case filings to institution staff, who will scan and e-mail documents to the court. 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. Plaintiffs who are inmates at all other prison facilities must submit the original document for each filing to the court to the following address: Honorable William C. Griesbach c/o Office of the Clerk United States District Court Eastern District of Wisconsin 125 S. Jefferson Street, Suite 102 Green Bay, WI 54301
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. Dated at Green Bay, Wisconsin this 4th day of August, 2020. s/ William C. Griesbach William C. Griesbach United States District Judge