United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON-DAVILA, Plaintiff,
CHRISTOPHER SCHMALING, DOUGLAS WEARING, LT. BRADLEY FRIEND, C.O. ZIMMER, and JOHN DOES, Defendants.
Stadtmueller U.S. District Judge
plaintiff, who is incarcerated at Columbia Correctional
Institution, filed a pro se complaint under 42
U.S.C. § 1983, alleging that his civil rights were
violated. (Docket #17). This matter comes before the Court on
the plaintiff's motion to proceed in forma
pauperis. (Docket #2). The plaintiff has been assessed
and paid an initial partial filing fee of $1.08. 28 U.S.C.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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. §
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). The Court may, therefore,
dismiss a claim as frivolous where it is based on an
indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S.
at 327; Gladney, 302 F.3d at 774. “Malicious,
” although sometimes treated as a synonym for
“frivolous, ” “is more usefully construed
as intended to harass.” Lindell v. McCallum,
352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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); Christopher, 384 F.3d at 881.
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.
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 N. 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,
Court screens the plaintiff's amended complaint filed on
March 3, 2017. (Docket #17). The focus of the complaint is
plaintiff's suicide attempts and the defendants'
indifference thereto while he was incarcerated in the Racine
County Jail (the “Jail”). The complaint is
overlong and difficult to parse; it is forty pages,
single-spaced, and entirely handwritten. Nevertheless, the
Court gleans a number of overarching allegations. The first
theme of the plaintiff's complaint is that he believes
certain cells and common areas are improperly designed.
Namely, he contends that certain cell doors allow inmates to
pass objects underneath them, giving the plaintiff access to
weapons with which to harm himself. Id. at 5-7. The
second theme is directed at the defendants' allegedly
inadequate search of the dayroom between each inmate's
hour of recreation time. Id. at 7. This resulted in
other inmates leaving objects behind in the dayroom for
plaintiff to obtain and use in self-harming episodes.
Id. Finally, the plaintiff complains that
non-suicidal inmates were housed near him, and that those
inmates would goad him into suicidal acts. Id. at 4.
specific examples the plaintiff presents are as follows. In
the early fall of 2015, while on suicide watch, the plaintiff
obtained two pieces of metal. Id. at 8. He did so by
finding them in the dayroom during his recreation time.
Id. The correctional officers on duty did not search
the dayroom before letting the plaintiff in for recreation,
which he alleges they should have done. Id. He
stabbed himself with the metal pieces. Id. He was
taken to a hospital for treatment. Id. at 9. The
plaintiff maintains that the defendants were all aware of his
risk of suicide because of his repeated letters to them, but
they did not do enough to prevent this incident. Id.
Finally, he alleges that mental health treatment staff
refused to treat his mental disorders, leading to later
suicide attempts. Id. at 10.
November 20, 2015, the plaintiff alleges he was bullied by
non-suicidal inmates housed near him in the suicide watch
unit. Id. at 12-13. Because of their taunting, the
plaintiff apparently cut himself. Id. Again, he
alleges that the defendants were on notice of the issue
because he sent letters to them, but nothing was done to
separate him from his tormentors. Id. The plaintiff
further alleges that the defendants held weekly team meetings
wherein they affirmed his housing assignment despite knowing
its danger to him. Id. at 15. He states that this
incident caused him great pain though he was not offered any
medication to abate it. Id. at 15-16.
final specific episode occurred the next day, November 21,
2015. Id. at 17. It is unclear precisely how he
obtained the weapon for this episode. At one point, the
plaintiff alleges that it was the same weapon he used the
previous day, which was inexplicably left in his possession.
Id. at 19. Later, he states that another prisoner
slid a weapon under his cell door. Id. at 29. In any
event, he cut his arm, again causing pain and psychological
distress. Id. at 20. As to each of these incidents,
the plaintiff alleges that safer cell assignments were
available but were not chosen. See, e.g.,
id. at 15-16, 21.
plaintiff explains which of the various Doe defendants were
involved in each incident. As to the named defendants, only
C.O. Zimmer appears to have been directly involved in any of
the incidents. Id. at 12, 17. The plaintiff alleges
that Christopher Schmaling (“Schmaling”), Douglas
Wearing (“Wearing”), and Lt. Bradley Friend
(“Friend”) were among those on notice of his
suicide risk by his previous letters. Further, plaintiff
alleges that Schmaling, Racine County's sheriff, is
“responsible for misuse of his jailspace.”
Id. at 24. Wearing, an “administrative
captain” for the Jail, “has the say so authority
to place plaintiff where in the jail and . . . used . . .
unsafe cells” causing his suicide attempts.
Id. at 25. Wearing also approved the recommendation
of the Doe defendants regarding his placement in unsafe
cells. Id. Finally, Friend was “in charge of
investigations surrounding all of plaintiff's suicide
attempts” and knew, through that work, that the
plaintiff presented a serious risk of suicide. Id.
plaintiff's allegations suffice at the screening stage to
state a claim for the defendants' deliberate indifference
to his serious medical need-here, his risk of suicide-in
violation of the Eighth Amendment. Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). To state
a claim of deliberate indifference to a serious medical need,
the plaintiff must show: (1) an objectively serious medical
condition; (2) that the defendants knew of the condition and
were deliberately indifferent in treating it; and (3) this
indifference caused the plaintiff some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry here, like that applicable to conditions
of confinement, has two components. “The official must
have subjective knowledge of the risk to the inmate's
health, and the official also must disregard that
risk.” Id. Even if an official is aware of the
risk to the inmate's health, “he is free from
liability if he ‘responded reasonably to the risk, even
if the harm ultimately was not averted.'”
Id. (quoting Farmer, 511 U.S. at 843).
Negligence cannot support a claim of deliberate indifference,
nor is medical malpractice a constitutional violation.
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976);
Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
the plaintiff's allegations liberally, the Court finds
that he should be permitted to proceed on this claim. See
Estate of Novack ex rel. Turbin v. County of Wood, 226
F.3d 525, 529 (7th Cir. 2000) (“In order to be liable
under the Eighth Amendment, a prison official must be
cognizant of the significant likelihood that an inmate may
imminently seek to take his own life and must fail to take
reasonable steps to prevent the inmate from performing this
act.”). He alleges that each defendant was aware of his
suicide risk and did not take action sufficient to abate it.
It may be that some of the defendants were not personally
involved in the alleged constitutional violations. As to
those that were, they may have responded adequately to the
plaintiff's threats of suicide ...