United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
BARBARA A. TEELING, ANTHONY LACOMBE, JOHN DOES, and SERGEANT DOE, Defendants.
Stadtmueller U.S. District Judge.
Raymond J. Bergeron Davila, who is incarcerated at Columbia
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that the defendants
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $0.36. See 28
U.S.C. § 1915(b)(1).
court shall 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. Id. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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 Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“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). 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's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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. Section 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)).
alleges that on January 10, 2016, he was incarcerated at the
Racine County Jail. (Docket #1 at 1). That day, Plaintiff was
placed in a restraint chair. Id. at 2. While
restrained, Defendants (various correctional officers) either
struck Plaintiff repeatedly or watched as others did so
without intervening. Id. at 2-4. Defendants also
painfully tightened the restraints themselves. Id.
These allegations state claims for excessive force, and a
failure to intervene to prevent the use of excessive force,
in violation of the Eighth Amendment, as the force used was
extreme and carried no apparent penological purpose.
Green v. Chvala, 567 F. App'x 458, 461 (7th Cir.
2014) (police officer allegedly used excessive force when
kneeing a motionless, handcuffed suspect; a failure to
intervene claim is appropriate when “officers had a
realistic opportunity to intervene to prevent the harm from
occurring.” (quotation omitted)). Because it is not
clear which Defendants participated in the beatings, and
which merely looked on, Plaintiff will be permitted to
proceed against all Defendants on both of these theories.
also wishes to pursue a claim under the Equal Protection
Clause of the Fourteenth Amendment. In this context,
Plaintiff asserts a “class-of-one” style claim,
wherein he must prove that he was “intentionally
treated differently from others similarly situated and that
there is no rational basis for the difference in
treatment.” Engquist v. Ore. Dep't of
Agr., 553 U.S. 591, 601 (2008). While most circuits
require highly specific allegations regarding the
“similarly situated” element to validly state
such a claim, the Seventh Circuit has set an extremely low
pleading standard. Geinosky v. City of Chicago, 675
F.3d 743, 747-48 (7th Cir. 2012). Consequently, though the
Court has misgivings about whether Plaintiff can truly point
to any similarly situated comparators, it must allow him to
proceed on the claim at this time.
the court finds that the plaintiff may proceed on the
following claims pursuant to 28 U.S.C. § 1915A(b):
Claim One: Excessive force against
Plaintiff, in violation of the Eighth Amendment, against all
Claim Two: Failure to intervene to protect
Plaintiff against the use of excessive force against all
Claim Three: Intentionally treating
Plaintiff differently than other similarly situated persons,
in violation of the Fourteenth Amendment, against all
IT IS ORDERED that the plaintiff's
motion for leave to proceed without prepayment of the filing
fee (in forma pauperis) ...