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Capoeira v. Pollard

United States District Court, E.D. Wisconsin

April 13, 2016



LYNN ADELMAN District Judge.

On February 24, 2016, plaintiff, Jermaine Capoeira, filed an action under 42 U.S.C. §1983 alleging that his Eighth Amendment rights were violated the Waupun Correctional Institution. He asked to proceed in forma pauperis and moved for a preliminary injunction. On March 17, 2016, I assessed an initial partial filing fee of $0.08. Plaintiff then filed a second motion for injunctive relief on March 18, 2016. He subsequently paid his initial partial filing fee on March 28, 2016. Therefore, plaintiff’s motion for leave to proceed in forma pauperis will be granted.

The Prisoner Litigation Reform Act requires federal courts 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 may dismiss an action or portion thereof if the claims alleged are “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).

To state a claim under the federal notice pleading system, plaintiffs must provide a "short and plain statement of the claim showing that [he] is entitled to relief[.]" Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific facts and need only provide "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)). “Labels and conclusions” or a "formulaic recitation of the elements of a cause of action” will not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). The factual content of the complaint must allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Indeed, allegations must “raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.

Federal courts follow the two step analysis set forth in Twombly to determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First, the court determines whether the plaintiff’s legal conclusions are supported by factual allegations. Id. Legal conclusions not support by facts “are not entitled to the assumption of truth." Id. Second, the court determines whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief." Id. Pro se allegations, “however inartfully pleaded, ” are given a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

In the context of a §1983 claim, 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 the 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). A suit seeking monetary damages under §1983 must further allege that the defendants were personally involved in the constitutional deprivation. Matz v. Klotka, 769 F.3d 517, 527 (2014).


Sometime in mid-December 2015, plaintiff, a former gang member, renounced his gang affiliation and gave Correctional Officer Hierzewjewski a 90-minute recorded statement to that effect. Shortly after plaintiff gave his statement, individuals from his former gang began to threaten him. Plaintiff notified Hierzewjewski that there was a “gang hit” on plaintiff, and plaintiff requested to move to protective custody for his safety. (ECF No. 1 at 3). Hierzewjewski said that he would “keep an eye on the gang” and that plaintiff “had nothing to worry about.” Id. Hierzewjewski did not move plaintiff to protective custody.

On December 17, 2015, plaintiff filed an emergency psychological service request (“PSR”) with the Psychological Services Unit (“PSU”). He stated that he continued to receive threats to his health and safety by former gang members. PSU responded that it forwarded the request to Captain Radke, a member of the Gang Task Force, and did nothing else. Radke also did not follow up with plaintiff.

On December 22, 2015, plaintiff wrote to Warden William Pollard requesting to transfer to another prison due to the continued threats to his health and safety. Pollard did not respond or follow up with plaintiff. On that same day, Plaintiff also wrote to Captain Westra requesting to transfer to another prison and requesting Special Protection Need (“SPN”) forms. Westra also did not respond or follow up with plaintiff. Plaintiff, nevertheless, acquired the SPN forms and filed them as instructed.

On January 11, 2016, two former gang members attacked the plaintiff in his cell. Plaintiff sustained “severe and substantial injury to his left hand” from the attack. Id. at 4. There were no witnesses to the attack. However, a unit sergeant noticed injuries to plaintiff’s hand and inquired about them. Plaintiff lied about the injuries to avoid a reputation as a snitch.

Plaintiff again wrote to Radke on January 22, 2016. Plaintiff stated that there was a forthcoming “planned attack.” Id. Plaintiff also informed Radke about the previous attacked that occurred on January 11, 2016. Radke responded that plaintiff’s SPN forms were being processed and took no further action.

On January 24, 2016, plaintiff contacted an officer to inform him that plaintiff had been attacked. The plaintiff does not indicate when the attack occurred and does not specify what injuries he sustained. The officer told plaintiff to “stay low and out of sight” until the officer could speak with Hierzewjewski the next day. Id. The next day, on January 25, 2016, Hierzewjewski gave plaintiff a conduct report for assault and group resistance for fighting. Hierzewjewski then transferred plaintiff to segregation.

On January 26, 2016, plaintiff wrote to Security Director Tony Meli requesting to transfer to another prison due to the fights. Meli responded that plaintiff was “responsible for his own safety.” Id. at 5. Plaintiff wrote twice more to Pollard’s office after the fights: once on January 26, 2016 and ...

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