United States District Court, W.D. Wisconsin
D. PETERSON District Judge
prisoner Bernard Kretlow filed proposed complaints in this
case and 16-cv-583 alleging various constitutional violations
by Green Bay Correctional Institution (GBCI) employees and a
fellow inmate. I reviewed his complaints and concluded that
they did not meet the pleading requirements of Federal Rule
of Civil Procedure 8, nor did they comply with Rule 20
because his claims concerned unrelated events against
different defendants. Dkt. 14. I gave him a chance to choose
to pursue one of four possible separate lawsuits in this
Lawsuit 1: Allegations against Officer Norton threatening
Kretlow and laughing at Tarrell Washington's actions, and
a state assault claim against Washington.
Lawsuit 2: Eighth Amendment deliberate indifference claims
against Captain Michael Schultz, Lieutenant Elsinger,
Sergeant Rozmarynski, and Sergeant Cummings for not stopping
Kretlow from banging his head.
Lawsuit 3: Eighth Amendment deliberate indifference claims
against Dr. Allen and Dr. S. Garland for not ordering a new
Lawsuit 4: A Fourteenth Amendment due process claim against
Officer Wasielewski for administering medicine to Kretlow
without his consent.
responded by filing an amended complaint and stating that he
would like to pursue Lawsuit 1. Dkt. 16. I will now screen
the allegations in his amended complaint. In doing so, I must
dismiss any portion that is legally frivolous, malicious,
fails to state a claim upon which relief may be granted, or
asks for money damages from a defendant who by law cannot be
sued for money damages. 28 U.S.C. §§ 1915 and
1915A. Because Kretlow is a pro se litigant, I must read his
allegations generously. Haines v. Kerner, 404 U.S.
519, 521 (1972) (per curiam). Having reviewed the amended
complaint, I conclude that it fails to state a claim upon
which relief can be granted. I will therefore dismiss this
case in its entirety.
the following facts from Kretlow's amended complaint.
August 2016, Kretlow was incarcerated at GBCI. As the guards
were distributing medications to the inmates one evening,
Kretlow noticed Officer Astrada wearing a mask and asked her
if the guards recently “gassed” someone. Officer
Norton was next to Kretlow's cell and responded to
Kretlow's question by placing his hand on his mace and
telling Kretlow that he would be the next to get gassed.
Kretlow felt scared and threatened, and he refused to take
the medications that Norton gave to him. He continues to feel
scared, nervous, and afraid whenever Norton is near him.
Kretlow's initial complaints included allegations against
Tarrell Washington and allegations against Officer Norton
that appeared to involve Washington, Kretlow's amended
complaint focuses solely on Norton's actions. I take the
amended complaint to indicate that Kretlow wishes to pursue
claims against only Norton in this case, and I will confine
my analysis to the allegations in Kretlow's amended
complaint. I note that Kretlow is proceeding with what I have
called “Lawsuit 2” in case no. 16-cv-583.
alleges that Norton threatened to mace him for no apparent
reason. “[I]t is a violation of the Eighth Amendment
for prison officials to use mace or other chemical agents in
quantities greater than necessary or for the sole purpose of
punishment or the infliction of pain.” Soto v.
Dickey, 744 F.2d 1260, 1270 (7th Cir. 1984). If Norton
had actually used mace on Kretlow, he would have
violated the Eighth Amendment. A threat rises to the level of
cruel and unusual punishment when a reasonable victim would
fear for his life as a result of the threat. Dobbey v.
Ill. Dep't of Corr., 574 F.3d 443, 445 (7th Cir.
2009). A threat to mace an inmate without cause, while
repugnant, would not cause a reasonable inmate to fear for
his life because mace is not a deadly weapon. Lucio v.
Santos, No. 11-cv-979, 2012 WL 12543021, at *4-5 (S.D.
Ill. Aug. 9, 2012). But even when a guard does not threaten
the use of deadly force, his comments and actions may
constitute cruel and unusual punishment if they cause
“significant psychological harm” to the inmate.
Beal v. Foster, 803 F.3d 356, 359 (7th Cir. 2015).
Under the facts alleges in the complaint, it is not plausible
that Norton's brief and isolated comment would cause a
reasonable person significant psychological harm. ...