# Brown v. Paul

> District Court, E.D. Wisconsin · February 24, 2022

URL: https://www.frixlaw.com/law-library/cases/10716776

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** February 24, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MARCELL BROWN,

Plaintiff,
v. Case No. 21-CV-395-JPS

SGT. PAUL, M. MEISNER, and J.
TASSLER, ORDER

Defendants.

Plaintiff Marcell Brown, an inmate confined at Fox Lake Correctional
Institution (“Fox Lake”), filed a pro se complaint under 42 U.S.C. § 1983
alleging that Defendants violated his constitutional rights. (Docket #1). This
Order resolves Plaintiff’s motion for leave to proceed without prepaying
the filing fee and screens his complaint.
1. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case
because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On April 28, 2021, the Court ordered Plaintiff to pay an initial partial
filing fee of $117.95. (Docket #6). On May 14, 2021, the Court granted
Plaintiff’s request to have his initial partial filing fee taken from his release
account. (Docket #8). Thereafter, on May 25, 2021, the Court received the
entire filing fee of $402.00. Plaintiff then wrote to the Court, explaining that
this amount was paid in error by the prison; Plaintiff asks that the Court
refund him the amount paid over the initial partial filing fee. (Docket #9).
The Court will do so. The Court orders that the Clerk of Court refund
$284.05 to Plaintiff and that the institution return that money to the account
out of which it was taken. Additionally, the Court will grant Plaintiff’s
motion for leave to proceed without prepaying the filing fee. (Docket #2).
Plaintiff must pay the remainder of the filing fee, $232.05, over time in the
manner explained at the end of this Order.
2. SCREENING THE COMPLAINT
2.1 Federal Screening Standard
Under the PLRA, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must
dismiss a complaint if the prisoner 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 complaint states a claim, the Court
applies the same standard that applies to dismissals 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)). A 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 complaint must contain enough facts, accepted as true, to “state a claim
for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. 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 Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them 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)).
2.2 Plaintiff’s Allegations
Plaintiff alleges that, on February 2, 2021, he was a personal care
worker for another inmate at Fox Lake, Jacoby, who needed to be
transported to the Health Services Unit. (Docket #1 at 2). Plaintiff attempted
to transport Jacoby in Jacoby’s wheelchair, however, “the wheelchair came
up from the ground because there is a ‘crackage’ in the cement about a[n]
inch & a half.” (Id.) When the wheelchair lifted due to the crack, it
punctured Plaintiff’s knee and groin, which caused him pain. (Id. at 2–3).
According to Plaintiff, he had previously reported this crack in the
cement to the security director of Fox Lake. (Id. at 4). He had also brought
to Sgt. Paul’s attention that Jacoby’s wheelchair was inadequate for both the
terrain and Jacoby’s size. (Id.) Both the security director and Sgt. Paul took
no action after Plaintiff informed them of these two problems before
Plaintiff was injured. (Id.)
2.3 Analysis
Plaintiff’s allegations invoke his rights under the Eighth
Amendment. The Eighth Amendment proscription of cruel and unusual
punishment “obligates prison officials to ‘take reasonable measures to
guarantee the safety of . . . inmates.’” Sinn v. Lemmon, 911 F.3d 412, 419 (7th
Cir. 2018) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)); see also
LaBrec v. Walker, 948 F.3d 836, 841 (7th Cir. 2020). A plaintiff “seeking to
establish a violation of that Eighth Amendment right must show that the
prison official was deliberately indifferent to an excessive risk to the
[inmate’s] health or safety, which includes both an objective and subjective
component.” LaBrec, 948 F.3d at 841.
The first inquiry is whether the harm to which the inmate was
exposed was “an objectively serious one.” Id. The second inquiry is whether
the prison official had “actual, not merely constructive, knowledge of the
risk to be liable.” Id. Specifically, the prison official “must both be aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw that inference.” Gevas v.
McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015) (quoting Farmer, 511 U.S. at
837). “Whether a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual ways,
including inference from circumstantial evidence . . . and a factfinder may
conclude that a prison official knew of a substantial risk from the very fact
that the risk was obvious.” Farmer, 511 U.S. at 842. “Because a prison
official’s duty under the Eighth Amendment is to ensure ‘reasonable
safety,’ prison officials who actually knew of a substantial risk to inmate
health or safety can nevertheless escape liability if they responded
reasonably to the risk, whether or not the harm was ultimately averted.”
LaBrec, 948 F.3d at 841 (quoting Farmer, 511 U.S. at 844–45).
Here, Plaintiff’s complaint fails as to the second prong—whether
prison officials were aware of and ignored a substantial risk to Plaintiff’s
health or safety. Plaintiff states that he informed prison officials at Fox Lake
that Jacoby’s wheelchair was inadequate for the terrain and Jacoby’s size.
He also informed prison officials that there was a crack in the cement across
which Jacoby had to be transported. These two conditions posed risks to
Jacoby—i.e., that his wheelchair could not support him and that the
sidewalk was in a condition unfit for his wheelchair. The risks about which
Plaintiff informed prison officials did not present a substantial threat to
Plaintiff’s health and safety. Defendants1 were not deliberately indifferent
to Plaintiff’s health and safety.
3. CONCLUSION
Plaintiff has failed to state a claim upon which relief may be granted.
His complaint alleges that, while Defendants may have been deliberately
indifferent to Jacoby’s health and safety, they were not deliberately
indifferent to Plaintiff’s. What happened to Plaintiff was an unfortunate
accident, but it is not enough to rise to a constitutional claim.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Clerk of Court refund $284.05
to Plaintiff and that the institution return that money to the account out of
which it was taken;

1Plaintiff’s complaint is also deficient for failing to discuss the specific roles
of Defendants M. Meisner and J. Tassler in causing his injuries.
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) because the
complaint fails 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
Plaintiff shall collect from his institution trust account the $232.05 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 his 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 case. If Plaintiff is transferred to another
county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his remaining balance to the
receiving institution; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 24th day of February, 2022.
BY THE COURT:
\\ AV ye
RO
OEY fa
J. R. Stadh eller
U.S. District Judge

Page 6 of 7

This Order and the judgment to follow are final. A dissatisfied party 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 thirty (30) days of
the entry of judgment. See Fed. R. of 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 thirty-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 limited 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
twenty-eight (28) days of the entry of judgment. The Court cannot extend
this deadline. See Fed. R. Civ P. 6(b)(2). 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 the judgment. The Court cannot
extend this deadline. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10716776. Public record. Not legal advice.