Enerson v. Slinger, No. 1:2012cv00248 - Document 7 (E.D. Wis. 2012)
Court Description: SCREENING ORDER granting 2 Motion for Leave to Proceed in forma pauperis; signed by Judge William C Griesbach on 04/10/2012. See Order for full details. (cc: all counsel, via US mail to Nicholas Enerson and William Pollard - Warden at WCI) (Griesbach, William)
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Enerson v. Slinger Doc. 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN NICHOLAS L. ENERSON, Plaintiff, v. Case No. 12-C-0248 MARYANN SLINGER, Defendant. SCREENING ORDER Plaintiff Nicholas L. Enerson, who is incarcerated at Waupun Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the Court on the plaintiff’s petition to proceed in forma pauperis. The plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he or she can request leave to proceed in forma pauperis. The 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 and paid an initial partial filing fee of $1.03. The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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 Dockets.Justia.com “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). 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (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.” Iqbal, 129 S. Ct. at 1949 (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 2 complaint 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, 129 S. Ct. at 1950. 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. § 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. Village of North 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)). Enerson alleges he has asthma and was having trouble breathing. (ECF No. 1 at 3.) He says he requested to see the nurse but that she refused him medical care. (Id.) He says Nurse Slinger refused even to evaluate his condition. (Id. at 4.) The Eighth Amendment, which prohibits “cruel and unusual punishments,” imposes a duty on prison officials to ensure that inmates receive adequate food, clothing, shelter, and medical care; prison officials also must take reasonable measures to guarantee an inmate’s safety. Farmer v. 3 Brennan, 511 U.S. 825, 832 (1994); see U.S. Const. Amend. VIII. A prison official’s “deliberate indifference” to a prisoner’s medical needs or to a substantial risk of serious harm to an inmate violates the Eighth Amendment, which is applicable to the states through the Fourteenth Amendment. See Farmer, 511 U.S. at 828; Estelle v. Gamble, 429 U.S. 97, 104–105 (1976). The test for such a violation has two parts. Farmer, 511 U.S. at 834. First, the deprivation alleged must be “sufficiently serious” when viewed objectively. Id. The Eighth Amendment guarantees humane prisons, not comfortable ones. Id. at 832. To be liable, a prison official must deny the “minimal civilized measure of life’s necessities” or create “a substantial risk of serious harm.” Id. at 834. Second, the official must have acted out of “deliberate indifference” to the inmate’s health or safety. Id. Deliberate indifference requires more than negligence; it requires that the official know of, yet disregard, an excessive risk to the inmate’s health or safety. Id. at 835, 837. Subjective knowledge of the risk is required: “[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.” Id. at 838. Here, I am convinced that Enerson’s allegations, if true, could rise to a level constituting deliberate indifference. An inability to breathe, due to asthma, could create a substantial risk of serious harm and is sufficiently serious when viewed objectively. Enerson’s allegation — that the nurse willfully ignored his pleas — also suggests a possibility, that if true, she acted with deliberate indifference to the risks of his health and safety. The court therefore finds Enerson is allowed to proceed on his cognizable claim of deliberate indifference. 28 U.S.C. § 1915A(b). IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to proceed in forma pauperis be and hereby is GRANTED. 4 IT IS FURTHER ORDERED that pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, copies of plaintiff's complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the state defendants. IT IS ALSO ORDERED that the defendants shall file a responsive pleading to the complaint. IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of Corrections or his designee shall collect from the plaintiff’s prison trust account the $348.97 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 prisoner’s trust account and forwarding payments to the clerk of the 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. IT IS ALSO ORDERED that copies of this order be sent to the warden of the institution where the inmate is confined. IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal material to: Honorable William C. Griesbach c/o Office of the Clerk United States District Court - WIED United States Courthouse 125 S. Jefferson St., Suite 102 Green Bay, Wisconsin 54301 PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will only delay the processing of the matter. 5 The plaintiff is notified that from now on, he is required under Federal Rule of Civil Procedure 5(a) to send a copy of every paper or document with the court to the opposing party or, if the opposing party is represented by counsel, to counsel for that party. Fed. R. Civ. P. 5(b). The plaintiff should also retain a personal copy of each document. If the plaintiff does not have access to a photocopy machine, he may send out identical handwritten or typed copies of any documents. The court may disregard any papers or documents which do not indicate that a copy has been sent to the opposing party or that party’s attorney, if the party is represented by an attorney. The 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 10th day of April, 2012. s/ William C. Griesbach William C. Griesbach United States District Judge 6
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