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Miller v. Schwochert

United States District Court, E.D. Wisconsin

May 18, 2016

JULIAN J. MILLER, Plaintiff,



         This matter comes before the Court on the plaintiff's motion for leave to proceed in forma pauperis and for screening of the plaintiff’s amended complaint.

         The plaintiff has been assessed and paid an initial partial filing fee of $8.85. The Court will grant the plaintiff’s motion for leave to proceed in forma pauperis.

         The Court is required 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 must dismiss a complaint or portion thereof if the prisoner has raised 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).

         To state a cognizable claim under the federal notice pleading system, the 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 is not necessary for the plaintiff to plead specific facts and his statement need only “give the defendant 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)). However, a complaint that offers “labels and conclusions” or “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). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting 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. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         To state a claim for relief under 42 U.S.C. § 1983, a 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 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)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         A. Complaint Allegations

         The plaintiff, Julian, Miller, is a state prisoner who is currently incarcerated at Green Bay Correctional Institution. The defendants are all employees of the Wisconsin Department of Corrections who worked at Dodge Correctional Institution (Dodge) on February 20, 2010, when the plaintiff was an inmate at Dodge house on the second floor.

         On February 20, 2010, defendants Kitzman, Doe, and Peachy came to the plaintiff’s cell and had him place his hands through the trap in the cell door. The plaintiff asked them to be easy on his wrist due to past breaks. As defendants Kitzman and Doe escorted the plaintiff down the stairs, the plaintiff asked CO Reyes why a conduct report had been written. Peachy told the plaintiff to “shut up, ” and Kitzman applied more pressure to the plaintiff’s wrists, which caused the plaintiff to tense his wrists so they were not as flexible. (ECF No. 9 at p. 2). Kitzman commented on the plaintiff tensing up, and then Peachy grabbed the plaintiff’s throat and tilted his head back. The plaintiff started choking because he had a Jolly Rancher candy in his mouth. The plaintiff could not tell Peachy what was happening until after the candy went down his throat.

         The plaintiff began walking, but Peachy again grabbed the plaintiff’s throat and tilted his head back and asked, “Are you going to go like a man or a girl?” (ECF No. 9 at p. 3). The plaintiff replied that he would continue walking, but Peachy continued to choke the plaintiff and hold his head back all the way to Unit 20. The plaintiff had great difficulty breathing and almost lost consciousness, which made him fear for his life. Doe and Kitzman followed behind, but never stopped the choke hold.

         Kitzman placed the plaintiff in a holding cell and gave him an orange jumpsuit. The plaintiff complained that his left wrist was hurting and asked to see a nurse. Kitzman left and then returned and told the plaintiff to give back the orange jumpsuit because it was dirty. Kitzman left again and came back with a control suit. The plaintiff was placed in the control room, where he had trouble sleeping due to the rubber mat and the cold temperature.

         The plaintiff filed a complaint, and defendant Phillips conceded that excessive force was used. The plaintiff believes that at least one other inmate before him complained about Peachy’s use of a choke hold. The plaintiff asserts that defendants Phillips and Schwochert did not take any corrective actions (such as training or ...

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