UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
LANIS E. SOLOMON, JR.,
Plaintiff, v. Case No. 19-CV-12-JPS
ARMOR CORRECTIONAL HEALTH SERVICES, INC., HEALTHCARE ORDER PROVIDERS, and NURSE PRACTITIONERS,
Defendants.
Plaintiff Lanis E. Solomon, Jr. proceeds in this matter pro se. He filed a complaint alleging that Defendants violated his constitutional rights. (Docket #1). This matter comes before the court on Plaintiff’s petition to proceed without prepayment of the filing fee (in forma pauperis). (Docket #2). Plaintiff’s initial partial filing fee was waived in this action, and Plaintiff has not notified the Court of his desire to voluntarily dismiss the case. The Court will therefore proceed with screening the action.1 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
1Plaintiff has filed a motion for appointment of counsel, (Docket #8), which must be denied at this juncture. The Court will entertain such motions at the close of discovery, which will be set in a forthcoming scheduling order. 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. County 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 was an inmate at the Milwaukee Criminal Justice Facility (“MCJF”) in Milwaukee, Wisconsin. (Docket #1 at 2). During an initial nursing assessment, he informed the nurse that he had a traumatic brain injury and often had seizures. Id. He signed two consent forms: a release of information so that medical providers could obtain his health files, and a permission form in order to continue off-site treatment. Id. In the six months after he signed these consent forms, he had severe seizures that often resulted in him losing control over his bowels. Id. During this six-month period, healthcare providers did not acknowledge the severity of his disability and did not provide adequate treatment. Id. For example, MCJF correctional officers refused to answer his medical emergency button or notify medical providers when he was having a seizure. Id. at 3. At one point, while having a seizure, correctional officers dragged his body from one area to another, under the eye of the medical supervisor. Id. Plaintiff asks to proceed on an Eighth Amendment right to medical care claim. 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
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
LANIS E. SOLOMON, JR.,
Plaintiff, v. Case No. 19-CV-12-JPS
ARMOR CORRECTIONAL HEALTH SERVICES, INC., HEALTHCARE ORDER PROVIDERS, and NURSE PRACTITIONERS,
Defendants.
Plaintiff Lanis E. Solomon, Jr. proceeds in this matter pro se. He filed a complaint alleging that Defendants violated his constitutional rights. (Docket #1). This matter comes before the court on Plaintiff’s petition to proceed without prepayment of the filing fee (in forma pauperis). (Docket #2). Plaintiff’s initial partial filing fee was waived in this action, and Plaintiff has not notified the Court of his desire to voluntarily dismiss the case. The Court will therefore proceed with screening the action.1 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
1Plaintiff has filed a motion for appointment of counsel, (Docket #8), which must be denied at this juncture. The Court will entertain such motions at the close of discovery, which will be set in a forthcoming scheduling order. 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. County 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 was an inmate at the Milwaukee Criminal Justice Facility (“MCJF”) in Milwaukee, Wisconsin. (Docket #1 at 2). During an initial nursing assessment, he informed the nurse that he had a traumatic brain injury and often had seizures. Id. He signed two consent forms: a release of information so that medical providers could obtain his health files, and a permission form in order to continue off-site treatment. Id. In the six months after he signed these consent forms, he had severe seizures that often resulted in him losing control over his bowels. Id. During this six-month period, healthcare providers did not acknowledge the severity of his disability and did not provide adequate treatment. Id. For example, MCJF correctional officers refused to answer his medical emergency button or notify medical providers when he was having a seizure. Id. at 3. At one point, while having a seizure, correctional officers dragged his body from one area to another, under the eye of the medical supervisor. Id. Plaintiff asks to proceed on an Eighth Amendment right to medical care claim. 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)).2 Generously construed, Plaintiff’s allegations state a claim for deliberate indifference against MCJF’s medical staff. Plaintiff alleges that he
2It is unclear from Plaintiff’s allegations whether he should be viewed as a convicted prisoner or a pretrial detainee for purposes of a Section 1983 claim. Prisoners are protected by the Eighth Amendment’s prohibition on cruel and unusual punishment, while pretrial detainees are governed by the Fourteenth Amendment’s due process clause. For now, the Court finds that Plaintiff could proceed even under the more stringent standard provided by the Eighth Amendment. What the appropriate standard is must be addressed by the parties in dispositive motion practice or at trial. See Miranda v. Cty. of Lake, 900 F.3d 335, 350-54 (7th Cir. 2018). notified medical staff of his seizures and suffered from several severe episodes while at MCJF, but was either ignored or inadequately treated. The Court notes that one of the defendants, Armor Correctional Health, Inc., (“Armor”) may not be a correct defendant in this matter. Only those officials who are directly responsible for a constitutional violation may be sued under Section 1983. Minix v. Canarecci, 597 F.3d 824, 833–34 (7th Cir. 2010). However, Armor will be retained in the case so that they can assist in disclosing the identities of the individual Doe defendants. See Donald v. Cook Cty. Sheriff’s Dep’t, 95 F.3d 548, 556 (7th Cir. 1996). Additionally, the Doe defendants, “Healthcare Providers” and “Nurse Practitioners,” should be substituted with the correct individuals when their identities are known. Finally, the Court notes that the complaint makes allegations against officers who ignored Plaintiff’s seizures and dragged him across the floor, but does not name those officers as defendants. Plaintiff is free to move to amend his complaint to include allegations against those officers if he sees fit. Accordingly, IT IS ORDERED that Plaintiff’s motion for leave to proceed without prepayment of the filing fee (in forma pauperis) (Docket #2) be and the same is hereby GRANTED; IT IS FURTHER ORDERED that Plaintiff’s motion to appoint counsel (Docket #8) be and the same is hereby DENIED; IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the complaint and this order upon the defendants pursuant to Federal Rule of Civil Procedure 4. Plaintiff is advised that Congress requires the U.S. Marshals Service to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service by the U.S. Marshals Service precisely because in forma pauperis plaintiffs are indigent, it has not made any provision for these fees to be waived either by the court or by the U.S. Marshals Service; IT IS FURTHER ORDERED that Defendants shall file a responsive pleading to the complaint; 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 13th day of August, 2019. BY THE oh SDK ae. adlet J.P. Sti ueller U.S, DistricFJudge
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