Durley v. York
| Decision Date | 01 November 2022 |
| Docket Number | 22-cv-585-pp |
| Parties | TIMOTHY DURLEY, Plaintiff, v. ANN YORK, MEGAN LEBERAK, ANDREA BLEECKER, VICK GWENDOLYN, BRIAN TAPLIN, ROBERT WEINMAN, MARY ANN MOORE, CHERYL JEANPIERRE, JOSEPH BEAHM, ROBERT RYMARKIEWICZ, RANDELL HEPP, EMILY PROPSON, CASEY ROCA and TORRIA VAN BUREN, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING FILING FEE (DKT. NO. 2), GRANTING MOTION TO AMEND COMPLAINT (DKT. NO. 7), SCREENING AMENDED COMPLAINT UNDER 28 U.S.C. §1915A (DKT. NO. 8) AND DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 11)
Plaintiff Timothy Durley, who is incarcerated at Waupun Correctional Institution and is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. On August 22, 2022, the court received a letter from the plaintiff in which he stated his intent to file an amended complaint “to add new defend[a]nts etc [and] also [he] forgot to add details when [he] filed [the] complaint.” Dkt. No. 7. He asked the clerk to send him an amended complaint form, which the clerk's office sent the next day. Id. On September 6, 2022, the court received the plaintiff's proposed amended complaint. Dkt. No. 8.
Under Federal Rule of Civil Procedure 15, “[a] party may amend its pleading once as a matter of course within” twenty-one days of service or within twenty-one days after service of a responsive pleading. Fed.R.Civ.P. 15(a)(1). Because the defendants have not yet been served, the plaintiff's request to amend falls within the timeframe in Rule 15(a). The court will grant the plaintiff's request to amend his complaint. This decision also resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no. 2, screens his amended complaint, dkt. no. 8, and rules on his motion to appoint counsel, dkt. no. 11.
The Prison Litigation Reform Act (“PLRA”) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h). The PLRA lets the court allow an incarcerated plaintiff to proceed with his case without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C §1915(b)(1). He then must pay the balance of the $350 filing fee over time, through deductions from his prisoner account. Id.
On May 27, 2022, the court ordered the plaintiff to pay an initial partial filing fee of $1.53. Dkt. No. 6. The court received that fee on June 10, 2022. The court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee and will require him to pay the remainder of the filing fee over time in the manner explained at the end of this order.
Under the PLRA, the court must screen complaints brought by incarcerated persons seeking relief from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the plaintiff 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 amended complaint states a claim, the court applies the same standard that it applies when considering whether to dismiss a case 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)). To state a claim, the amended 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 amended complaint must contain enough facts, “accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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 was 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 court liberally construes complaints filed by plaintiffs who are representing themselves and holds such complaints 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)).
In his amended complaint, the plaintiff has sued fourteen defendants, all of whom work at Waupun: Registered Nurses Ann York, Megan Leberak, Andrea Bleecker, Vick Gwendolyn and Brian Taplin; Assistant Manager Robert Weinman; Doctors Mary Ann Moore and Cheryl Jeanpierre; Sergeant Joseph Beahm and Captain Robert Rymarkiewicz; Warden Randell Hepp; Deputy Warden Emily Propson; and Psychological Services Unit (“PSU”) Doctors Casey Roca and Torria Van Buren. Dkt. No. 8 at 1, 3-4.
The amended complaint alleges that on March 16, 2022, the plaintiff was housed in the Restricted Housing Unit (“RHU”). Id. at 5. He alleges that around midnight or 1:00 a.m., he “woke up throwing up blood, white and brown stuff.” Id. He told the person housed next to him to “yell medical emergency,” and several incarcerated persons began kicking their doors and yelling “medical emergency.” Id. Sergeant Beahm arrived at the plaintiff's cell door, as the plaintiff was vomiting, and the plaintiff asked Beahm if Beahm's body camera was recording. Id. When Beahm confirmed that it was and that he had seen the plaintiff vomit, the plaintiff told Beahm he “believe[d] [he] was poison[ed], and need[ed] a nurse.” Id. The plaintiff notes that his “food tasted funnie [sic]” the previous day, March 15, 2022. Id. at 6. Beahm told the plaintiff he would inform Nurse York and left the cell. Id. at 5-6. Beahm returned about a half hour later and told the plaintiff that York had said to take the plaintiff's inhaler. Id. at 6. The plaintiff replied he was not having trouble breathing. Id. Beahm responded, “due to your ‘3[-]man [restriction]' we[']re not bringing you out,” and he walked away. Id. He says Nurse York never came to see him. Id.
The plaintiff alleges he threw up all night and eventually passed out. Id. He awoke in the nurse's station in the restricted housing unit, where Nurse Leberak asked him what happened. Id. He told her he believed he had been poisoned, and she responded, “no you weren[']t.” Id. Leberak provided him liquid Pepto Bismol, which he “immediately thr[ew] up.” Id. Captain Rymarkiewicz told Leberak, “[I] guess we can wheel him to the strip[] cell to cool off.” Id. The plaintiff asked Rymarkiewicz to loosen his handcuffs, which he believed were too tight. Id. Rymarkiewicz told the plaintiff he would not remove the handcuffs until the plaintiff was “ready to go back to [his] cell.” Id. The plaintiff says he was left in the strip cell for four hours, wearing the tight handcuffs. Id.
Nurse Bleecker eventually came to the plaintiff's cell and gave him “a pill that dissolved and water,” which he threw up in the trash. Id. The plaintiff told Bleecker he was poisoned and needed to go to the hospital. Id. Bleecker responded, “[W]hat you want me to do[?]” and walked away. Id. The plaintiff says he was returned to his cell, and another prisoner told him Captain Rymarkiewicz “was present at [his] cell door, when [he] was wheeled out to the nurses station.” Id. at 6-7.
The plaintiff says he saw Nurse Taplin the same day and told Taplin he had been poisoned and needed to go to the hospital. Id. at 7. Taplin told the plaintiff “he [couldn't] do that for [him].” Id. Taplin gave the plaintiff “a liquid substance to drink,” which he threw up later that night. Id. The plaintiff told Taplin he was going to go on a water and hunger strike, and Taplin said “ok” and for the plaintiff to write the Health Services Unit (“HSU”). Id. The plaintiff says he began a hunger and water strike on March 16, 2022, because he believed “[his] blood and urine was going to be taken for poison, which it wasn[']t.” Id.
The plaintiff saw Doctor Moore the next week, who “did nothing” when the plaintiff told her he had been poisoned and threw up “thick white stuff” in front of her. Id. Moore told the plaintiff “she heard ‘two' different stories” about the plaintiff being poisoned. Id. Moore told the plaintiff she would schedule him to see Doctor Jeanpierre. Id. When the plaintiff saw Jeanpierre and told her he had been poisoned, she responded, “no you weren[']t,” and the plaintiff questioned why she did not run a blood or urine test or send him to the hospital. Id. Jeanpierre replied that the plaintiff “didn[']t warrant it.” Id. He says Jeanpierre gave him “several non effective medications” that he threw up. Id. She also scheduled an x-ray “after a month and something from [his] poisoning on 3-16-2022.” Id. The plaintiff says Captain Rymarkiewicz denied the x-ray and told him “the cuffs have to come off, despite him having taser and pepper spray and 3 officers with him.” Id. at 7-8.
The plaintiff says he...
To continue reading
Request your trial