UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
TOMMIE L. CARTER,
Plaintiff, Case No. 19-CV-1751-JPS v.
DAVID ALLEN, ORDER
Defendant.
On December 30, 2019, the Court ordered Plaintiff to forward to the Clerk of Court the sum of $4.54 as an initial partial fee. (Docket #7). The Court permitted Plaintiff to use his release account to pay for the initial partial filing fee, (Docket #11), but Plaintiff experienced considerable difficulties in securing the fee’s payment. (Docket #12, #13). On February 25, in response to Plaintiff’s motion to waive the initial partial filing fee and renewed motion to proceed without prepayment of the filing fee, (Docket #14, #15), the Court ordered Plaintiff to re-submit a certified copy of his prisoner trust account statement. (Docket #16). Plaintiff complied. (Docket #18). Plaintiff also filed a motion to investigate sabotage by business personnel office, (Docket #19), which the Court will deny because it has no authority to order a non-party to conduct an internal investigation of conduct that is unrelated to the litigation. Under the PLRA, which amended the in forma pauperis statute, the Court must assess an initial partial filing fee of twenty percent of the average monthly deposits to Plaintiff’s account or average monthly balance in Plaintiff’s prison account for the six-month period immediately preceding the filing of the complaint, whichever is greater. Id. After the initial fee is paid, Plaintiff must make monthly payments of twenty percent of the preceding month’s income until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). “The agency having custody of the prisoner shall forward payments from the prisoner’s account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fees are paid.” Id. Plaintiff filed a certified copy of his prisoner trust account statement for the six-month period immediately preceding the filing of the complaint as required under 28 U.S.C. § 1915(a)(2). A review of this information reveals that, for the six-month period immediately preceding the filing of the instant complaint, the average monthly deposit to the account was $4.00 and the average monthly balance was $0.00. Thus, Plaintiff would ostensibly owe an initial partial filing fee of $0.80. Plaintiff does not in fact have any funds with which to pay any fees. Therefore, the Court will waive payment of the initial partial filing fee in this case. Id. § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”). The Court now turns to screening the complaint, which has been pending since December, 2019. The Court shall 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). 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. “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– 10 (7th Cir. 2003) (citations omitted). 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)). However, a complaint that offers mere “labels and conclusions” or a “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’s allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). 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. Section 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. Cty. 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)).
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
TOMMIE L. CARTER,
Plaintiff, Case No. 19-CV-1751-JPS v.
DAVID ALLEN, ORDER
Defendant.
On December 30, 2019, the Court ordered Plaintiff to forward to the Clerk of Court the sum of $4.54 as an initial partial fee. (Docket #7). The Court permitted Plaintiff to use his release account to pay for the initial partial filing fee, (Docket #11), but Plaintiff experienced considerable difficulties in securing the fee’s payment. (Docket #12, #13). On February 25, in response to Plaintiff’s motion to waive the initial partial filing fee and renewed motion to proceed without prepayment of the filing fee, (Docket #14, #15), the Court ordered Plaintiff to re-submit a certified copy of his prisoner trust account statement. (Docket #16). Plaintiff complied. (Docket #18). Plaintiff also filed a motion to investigate sabotage by business personnel office, (Docket #19), which the Court will deny because it has no authority to order a non-party to conduct an internal investigation of conduct that is unrelated to the litigation. Under the PLRA, which amended the in forma pauperis statute, the Court must assess an initial partial filing fee of twenty percent of the average monthly deposits to Plaintiff’s account or average monthly balance in Plaintiff’s prison account for the six-month period immediately preceding the filing of the complaint, whichever is greater. Id. After the initial fee is paid, Plaintiff must make monthly payments of twenty percent of the preceding month’s income until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). “The agency having custody of the prisoner shall forward payments from the prisoner’s account to the Clerk of the Court each time the amount in the account exceeds $10 until the filing fees are paid.” Id. Plaintiff filed a certified copy of his prisoner trust account statement for the six-month period immediately preceding the filing of the complaint as required under 28 U.S.C. § 1915(a)(2). A review of this information reveals that, for the six-month period immediately preceding the filing of the instant complaint, the average monthly deposit to the account was $4.00 and the average monthly balance was $0.00. Thus, Plaintiff would ostensibly owe an initial partial filing fee of $0.80. Plaintiff does not in fact have any funds with which to pay any fees. Therefore, the Court will waive payment of the initial partial filing fee in this case. Id. § 1915(b)(4) (“In no event shall a prisoner be prohibited from bringing a civil action or appealing a civil or criminal judgment for the reason that the prisoner has no assets and no means by which to pay the initial partial filing fee.”). The Court now turns to screening the complaint, which has been pending since December, 2019. The Court shall 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). 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. “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– 10 (7th Cir. 2003) (citations omitted). 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)). However, a complaint that offers mere “labels and conclusions” or a “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’s allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted). 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. Section 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. Cty. 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 contends that on September 17, 2019, while incarcerated at Green Bay Correctional Institution, he fell violently ill. He was vomiting blood and suffered intense pains in his stomach. Plaintiff informed correctional officer David J. Allen (“Allen”) that he was vomiting blood and in tremendous pain, but Allen did not do anything to help him. Indeed, Plaintiff alleges that Allen told him he would not contact the prison’s health services staff, despite the fact that Plaintiff was in serious pain. Plaintiff’s allegations invoke his rights under the Eighth Amendment 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) (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)). Generously construed, Plaintiff’s allegations state a claim for deliberate indifference against Allen. Plaintiff alleges that he was violently ill, informed Allen, and Allen not only ignored him but told him he would not help him. Accordingly, IT IS ORDERED that Plaintiff’s renewed motion for leave to proceed without prepayment of the filing fee (in forma pauperis) (Docket #14) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that Plaintiff’s motion to waive the initial partial filing fee (Docket #15) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that Plaintiff’s original motion for leave to proceed without prepayment of the filing fee (in forma pauperis) (Docket #4) be and the same is hereby DENIED as moot; IT IS FURTHER ORDERED that Plaintiff’s motion to investigate sabotage (Docket #19) be and the same is hereby DENIED; IT IS FURTHER ORDERED that pursuant to an informal service agreement between the Wisconsin Department of Justice and this Court, a copy of Plaintiff’s complaint and this Order have been electronically sent to the Wisconsin Department of Justice for service on Defendant; IT IS FURTHER ORDERED that, pursuant to the informal service agreement between the Wisconsin Department of Justice and this Court, Defendant shall file a responsive pleading to the complaint within sixty (60) days of receiving electronic notice of this Order; IT IS FURTHER ORDERED that the agency having custody of Plaintiff 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 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 action. If Plaintiff is transferred to another institution, county, state, or federal, 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 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, 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 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. Dated at Milwaukee, Wisconsin, this 2nd day of April, 2020. \ = np SRY PR pectin nae) J.R. Stadt eller U.S? District Judge
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