Brown v. McDermott

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WISCONSIN

STEWART BROWN,

Plaintiff,

v. Case No. 21-cv-0015-bhl

JENNIFER MCDERMOTT,

CAPTAIN HOFFMAN,

HSU MANAGER,

JOHN DOES, and

WISCONSIN DEPARTMENT OF CORRECTIONS,

Defendants.

SCREENING ORDER

Plaintiff Stewart Brown, who is currently serving a state prison sentence at the John C.

Burke Correctional Center and representing himself, filed a complaint under 42 U.S.C. §1983,

alleging that his civil rights were violated while he was incarcerated at the Kettle Moraine

Correctional Institution. This matter comes before the Court on Brown’s motion for leave to

proceed without prepaying the full filing fee and to screen the complaint.

MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE

Brown has requested leave to proceed without prepaying 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). Brown 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 $38.43. Brown’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, the

Court 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, a 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.

“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007)). “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. 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

Brown alleges that, on October 21, 2019, he was sent to an offsite urology appointment

with Dr. James Crauley (not a defendant) for a check-up related to his prostate cancer. Dkt. No.

1. Brown was accompanied by two transport officers, whose names Brown does not know. Brown

explains that he was shackled with his pants down when Dr. Crauley said, “Mr. Brown this camera

is going to hurt going in, but once in it’ll be ok.” Id. at 2-3. Brown says he told Dr. Crauley to

just get it over with, at which point, Dr. Crauley said, “At least it’s not a penis!” Id. at 3. The

officers started laughing and one said, “You should have seen his face how it turned red.” Id.

Brown says he was humiliated, but because he was concerned about his condition, he let Dr.

Crauley continue the examination.

Brown asserts that, after the examination, he asked the officers to help him make an

incident report, but they declined to get involved. He states that he reported the incident to health

services staff both in person and via a request form.

Brown was scheduled to see Dr. Crauley six months later, but due to COVID, the

appointment was postponed until July 22, 2020. The day before the appointment, Brown spoke to

a nurse (not a defendant) about what had happened. She noted everything in the computer but told

him that Dr. Crauley was the only urologist the institution had at that time. Brown went to the

appointment but refused to let Dr. Crauley touch him.

After the visit, the warden found out what had happened and directed Brown to speak with

Captain Hoffman. Brown says he has not heard back from Hoffman. Brown says he tried to call

the Prison Rape Elimination Act (PREA) hotline to report what had happened, but the number was

not working. Brown reported his challenges to several officers (none are defendants). Brown was

finally able to access the PREA hotline about a week later, on August 19, 2020. Brown says that

he has not heard back from anyone even though “[i]t is clear that [his] constitutional rights were

violated.” Dkt. No. 1 at 5. Brown asserts that he has been depressed and stressed and has had

trouble sleeping. He says he is scared because his cancer is serious and he continues to be referred

to Dr. Crauley for care. (The Court notes that Brown has since transferred to a different institution,

so it is not clear whether he is still in Dr. Crauley’s care.)

THE COURT’S ANALYSIS

This is the second time Brown has presented these allegations to the Court. On October 1,

2020, Brown sued Dr. Crauley and his employer Agnesian Healthcare, Inc. based on the comment

Dr. Crauley allegedly made during his examination of Brown. See Brown v. Crauley, No. 20-cv-

1521-bhl (E.D. Wis. Oct. 1, 2020). The Court dismissed the complaint for failure to state a claim

upon which relief could be granted. Brown, No. 20-cv-1521-bhl at Dkt. No. 11. The Court

explained that:

… it is well settled that verbal abuse or harassment does not violat[e] the

Constitution. “Standing alone, simple verbal harassment does not constitute

cruel and unusual punishment, deprive a prisoner of a protected liberty

interest or deny a prisoner equal protection of the laws.” DeWalt v. Carter,

224 F.3d 607, 612 (7th Cir. 2000) (“The use of derogatory language, while

unprofessional and deplorable, does not violate the Constitution.”) …. If

made, Dr. Crauley’s comment was inappropriate and unprofessional. But it

does not rise to the level of an “extreme deprivation” sufficient to constitute

a violation of Brown’s Eighth Amendment rights.

Id.

Brown now asserts that the unidentified officers violated his rights when they laughed at

Dr. Crauley’s comment and refused to help him file an incident report; that the warden, the health

services manager, and Hoffman violated his rights when they failed to investigate his complaints

and/or refer him to a different urologist; and that the Wisconsin Department of Corrections violated

his rights when it failed to investigate his PREA complaint. None of the complained about actions

state a claim upon which relief can be granted.

“Section 1983 creates a cause of action based on personal liability and predicated upon

fault; thus, liability does not attach unless the individual defendant caused or participated in a

constitutional deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir.1996). The Court has

already explained that, although Dr. Crauley’s comment was unprofessional, it was not sufficiently

extreme to run afoul of the Constitution’s prohibition against cruel and unusual punishment. If

Dr. Crauley did not violate Brown’s rights when he made the comment, the officers did not violate

his rights when they laughed at the comment. Again, the alleged conduct was unprofessional and

rude, but it did not violate the Constitution.

Similarly, because “[o]nly persons who cause or participate in the violation are

responsible,” Defendants are not liable under the Constitution simply for failing to adequately

investigate or respond to Brown’s complaints, particularly here, where the underlying misconduct

does not itself violate the Constitution. See George v. Smith, 507 F.3d 605, 609 (7th Cir. 2004);

Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011) (“Prison grievance procedures are not

mandated by the First Amendment and do not by their very existence create interests protected by

the Due Process Clause, and so the alleged mishandling of [plaintiff’s] grievances by persons who

otherwise did not cause or participate in the underlying conduct states no claim.”).

Failure to refer Brown to a different urologist also did not violates Brown’s rights. Brown’s

allegations do not suggest that there is any reason to question the quality of Dr. Crauley’s care.

Brown merely objects to Dr. Crauley’s manner. And, as the Court has explained, while his manner

may be unpleasant, it does not violate the Constitution. See Arnett v. Webster, 658 F3d 742, 754

(7th Cir. 2011) (explaining that inmates are not entitled to demand specific care nor are they

entitled to the best care possible).

Finally, Brown cannot sue the Wisconsin Department of Corrections. The State and its

agencies cannot be sued for constitutional violations because they are not “persons” within the

meaning of §1983. Will v. Michigan Dep’t of State Police, 493 U.S. 58, 65-66 (1989).

Brown has provided no arguable basis for relief, having failed to make any rational

argument in law or fact to support his claims. See House v. Belford, 956 F.2d 711, 720 (7th Cir.

1992) (quoting Williams v. Faulkner, 837 F.2d 304, 308 (7th Cir. 1988), aff'd sub nom. Neitzke v.

Williams, 490 U.S. 319 (1989)). Accordingly, the Court will dismiss this case.

IT IS THEREFORE ORDERED that Brown’s motion for leave to proceed in forma

pauperis (Dkt. No. 2) is GRANTED.

IT IS FURTHER ORDERED that this action is DISMISSED pursuant to 28

U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.

IT IS FURTHER ORDERED that the Clerk of Court document that this inmate has

incurred a “strike” under 28 U.S.C. §1915(g).

IT IS FURTHER ORDERED that the agency having custody of Brown shall collect from

his institution trust account the $311.57 balance of the filing fee by collecting monthly payments

from Brown’s prison trust account in an amount equal to 20% of the preceding month’s income

credited to Brown’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 Brown is transferred

to another institution, the transferring institution shall forward a copy of this Order along with

Brown’s remaining balance to the receiving institution.

IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.

Dated at Milwaukee, Wisconsin this 5th day of February, 2021.

s/ Brett H. Ludwig

BRETT H. LUDWIG

United States District Judge

This order and the judgment to follow are final. Plaintiff may appeal this Court’s decision to the Court

of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within 30 days of the entry

of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely requests

an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline.

See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee

regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he

must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).

Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be non-

meritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file

an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee

unless he demonstrates that he is in imminent danger of serous physical injury. Id.

Under certain circumstances, a party may ask this Court to alter or amend its judgment under Federal

Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure

60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the

entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a

reasonable time, generally no more than one year after the entry of judgment. The Court cannot extend

these deadlines. See Fed. R. Civ. P. 6(b)(2).

A party is expected to closely review all applicable rules and determine, what, if any, further action is

appropriate in a case.