United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who is incarcerated at Waupun Correctional Institution
(“Waupun”), filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the
Court on Plaintiff's motion to proceed in forma
pauperis. (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $47.90. 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. Id. §
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.
Id. § 1915A(b).
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); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; his
statement need only “‘give the defendant fair
notice of what the. . .claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)); 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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “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); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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)).
asserts claims against Trevor Klemmer (“Klemmer”)
and Daniel Cushing (“Cushing”), both correctional
officers at Waupun during the relevant period, arising from
an alleged incident of excessive force. On September 24,
2016, Plaintiff was being housed in the restrictive housing
unit (“RHU”) on observation because he was
undertaking a hunger strike. (Docket #1 at 2). That day, an
unnamed officer used an irritating chemical agent against an
inmate in the cell across the hall from Plaintiff.
Id. There was so much of the agent in the air that
Plaintiff had trouble breathing and he requested medical
then escorted by Klemmer and another officer (who is not
named as a defendant here) to a shower stall in another wing
of the prison. Id. During the walk to the shower,
Plaintiff was shackled at the ankles. Id. at 2-3. He
claims that the shackles were too tight and were placed
against his bare skin, causing him pain. Id. As they
reached the shower stall, he asked the officers to loosen the
shackles. Id. Klemmer then yelled at Plaintiff
“not to push back, ” to which Plaintiff
responded, “I am not pushing back, I am only asking a
question.” Id. at 3. Klemmer proceeded to push
Plaintiff into the shower stall. Id. Plaintiff
objected to being pushed, but Klemmer simply closed the stall
door. Id. The officers did not loosen
Plaintiff's leg shackles, which continued to cause him
alleges that after he was pushed, he became concerned that
Klemmer might try to hurt him further during the return
escort to his cell. Id. He claims that Klemmer has a
history of assaulting inmates in the RHU who are shackled.
Id. As a result, when a nurse and Cushing, the shift
sergeant, came to the shower stall to provide Plaintiff
medical care, Plaintiff pleaded with Cushing to have any
guard but Klemmer escort him back to his cell because he was
afraid of being attacked. Id. Cushing denied the
request, stating that “whoever I end up sending is who
will come get you.” Id. at 4.
person happened to be Klemmer, accompanied by another
non-defendant officer, Sergeant Nelson
(“Nelson”). Id. Plaintiff, fearful for
his safety, refused to leave the shower stall until he could
speak with Cushing or the security supervisor. Id.
Nelson said, “you are coming out of that shower stall,
” and Klemmer pulled Plaintiff out. Id. at
4-5. During the return journey to Plaintiff's cell, the
officers hurried Plaintiff along faster than he could
comfortably walk in light of the leg shackles. Id.
at 5. Plaintiff complained that they needed to slow down.
“without warning or provocation, Defendant Klemmer
slammed Plaintiff face-first to the concrete floor, ”
cutting Plaintiff's chin and causing severe pain.
Id. After Plaintiff was on the floor, Klemmer placed
his forearm against Plaintiff's face and pushed hard,
injuring Plaintiff's right eye. Id. Plaintiff
was sent to see a nurse for his injuries, and while with her
he lost consciousness. Id. The nurse, concerned
about Plaintiff's low blood pressure, had prison staff
take Plaintiff to a local hospital for further treatment.
Id. at 6. Plaintiff's chin required stitches.
these allegations, Plaintiff asserts that Klemmer used
excessive force against him, in violation of the Eighth
Amendment's prohibition on cruel and unusual punishment,
and committed the Wisconsin torts of assault and battery and
negligence. Id. at 8. Plaintiff claims that Cushing
failed to intervene to protect him from Klemmer, also in
violation of the Eighth Amendment, and that Cushing was
negligent under Wisconsin law. Id. at 7-8. The
Eighth Amendment prohibits the “unnecessary and wanton
infliction of pain” on prisoners. Outlaw v.
Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). When a
correctional officer is accused of using excessive force, the
core inquiry is “whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson
v. McMillian, 503 U.S. 1, 7 (1992); Santiago v.
Walls, 599 F.3d 749, 757 (7th Cir. 2010). Several
factors are relevant to this determination, including the
need for force, the amount applied, the threat the officer
reasonably perceived, the effort made to temper the severity
of the force used, and the extent of the injury caused to the
prisoner. Hudson, 503 U.S. at 7; Fillmore v.
Page, 358 F.3d 496, 504 (7th Cir. 2004). The Court finds
that given the liberal construction required of
Plaintiff's allegations at the screening stage, he has
stated a claim for excessive force against Klemmer, who
allegedly caused Plaintiff severe harm without threat or
will also be permitted to proceed against Cushing on a
failure to intervene theory. Section 1983 creates a cause of
action based on personal liability and predicated upon fault;
thus, “to be liable under [Section] 1983, an individual
defendant must have caused or participated in a
constitutional deprivation.” Pepper v. Vill. of Oak
Park, 430 F.3d 809, 810 (7th Cir. 2005). Because
personal involvement is required, the respondeat
superior doctrine-supervisor liability-is not applicable
to Section 1983 actions. Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001). Nevertheless, liability may
attach when a prison official consents to, facilitates, or
turns a blind eye toward another's conduct. Brokaw v.
Mercer County, 235 F.3d 1000, 1012 (7th Cir. 2000);
Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995). In such cases, the prison official must act
“either knowingly or with deliberate, reckless
indifference.” Jones v. City of Chicago, 856
F.2d 985, 992-93 (7th Cir. 1988). In excessive force ...