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Cislo v. Martz

United States District Court, S.D. Indiana, Indianapolis Division

October 22, 2018

RONNIE BEE CISLO, Plaintiff,
v.
BRANDON MARTZ, JERRY GILLEY, Defendants.

          ENTRY GRANTING MOTION TO PROCEED IN FORMA PAUPERIS, SCREENING COMPLAINT, AND DIRECTING SERVICE OF PROCESS

          TANYA WALTON PRATT, JUDGE

         I. In Forma Pauperis

         The plaintiff's motion for leave to proceed without prepaying fees or costs, dkt [3], is granted because the Court finds that the plaintiff does not have the assets or means to pay even an initial partial filing fee. Because the Prison Litigation Reform Act mandates that a prisoner will not be prohibited from bringing a civil action for the reason that he lacks the assets and means to pay an initial partial filing fee, 28 U.S.C. § 1915(b)(4), the plaintiff will be granted a waiver of payment of the initial partial filing fee in this case. He is still obligated, however, to pay the full filing fee pursuant to the statutory formula set forth in 28 U.S.C. § 1915(b)(2). See id. § 1915(b)(1). “All [28 U.S.C.] § 1915 has ever done is excuse pre-payment of the docket fees; a litigant remains liable for them, and for other costs, although poverty may make collection impossible.” Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996).

         II. Screening Standard

         The plaintiff is a prisoner currently incarcerated at the Pendleton Correctional Facility (Pendleton). Because the plaintiff is a “prisoner” as defined by 28 U.S.C. § 1915(h), this Court has an obligation under 28 U.S.C. § 1915A(b) to screen his complaint before service on the defendants. Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss the complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary relief against a defendant who is immune from such relief. In determining whether the complaint states a claim, the Court applies the same standard as when addressing a motion to dismiss under Federal Rules of Civil Procedure Rule 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir. 2006). To survive dismissal,

[the] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. 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.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se complaints such as that filed by the plaintiff are construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).

         III. The Complaint

         The plaintiff's complaint names two defendants: 1) Sergeant Brandon Martz; and 2)

         Captain Jerry Gilley.

         The plaintiff alleges that he is a mental health inmate and is confined in the segregated housing unit. On June 25, 2018, the plaintiff started a new “psychotic” medicine but suffered a “psychotic” episode in his cell on June 13, 2018. Dkt. 2. He made a request to defendant Martz that he be seen by mental health staff.

         Martz administered “bear” repellant spray on the plaintiff, and it burned his eyes, face, mouth, body, testicles, penis, and anus for several hours. The plaintiff was also in severe pain for several hours.

         Defendant Jerry Gilley witnessed this incident and failed to intervene to provide mental health treatment to the plaintiff. Instead, Martz and Gilley allegedly high-fived each other.

         The plaintiff was seen by mental health staff after being sprayed, and they determined he could ...


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