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Bergeron-Davila v. Schmaling

United States District Court, E.D. Wisconsin

May 24, 2017

RAYMOND J. BERGERON DAVILA, Plaintiff,
v.
CHRISTOPHER SCHMALING, DOUGLAS WEARING, LT. BRADLEY FRIEND, C.O. JOSEPH ZIMMER, and JOHN DOES Defendants.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         On April 14, 2017, Plaintiff filed a motion for leave to amend his complaint. (Docket #39). Plaintiff's proposed second amendment is intended to clear up certain areas of the first amended complaint which were difficult to read. Id. at 2.[1] Plaintiff also attaches additional exhibits to the second amended complaint. Id. at 3. Finally, the second amended complaint provides further explanation of each of the claims Plaintiff wishes to pursue. Id. For these reasons, and in light of the early stage of this litigation, the Court finds it appropriate to grant Plaintiff leave to file a second amended complaint. Fed.R.Civ.P. 15(a)(2).

         As noted in the first screening order, the 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). This includes Plaintiff's proposed second amended complaint. 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). All of the standards cited in the first screening order remain applicable here. (Docket #21 at 1-3).

         The factual allegations of the second amended complaint are largely identical to those in the first. (Docket #39-1). For brevity's sake, the Court includes by reference its factual discussion from the first screening order. (Docket #21 at 3-6). Within those allegations, the Court discerned two viable claims. Id. at 8. The first was for each of the Defendants deliberate indifference to Plaintiff's various forms of suicide risk, and the second was an official capacity claim against Defendant Christopher Schmaling (“Schmaling”) for any potential injunctive relief. Id.

         Plaintiff's motion for leave to amend included a helpful list of changes in his second amended complaint, revealing that most are concerned with clarifying the specific claims he wishes to advance. (Docket #39 at 5-8). The list shows that Plaintiff wishes to proceed on the following claims which were not identified in the Court's first screening order: 1) failure to protect Plaintiff from other inmates' bullying, housing conditions which facilitated self-harm, and clothing which could be used for self-harm; 2) a “deprivation of equal rights;” and 3) permitting official capacity claims to proceed against additional defendants. The Court address each in turn.

         Plaintiff's allegations reveal that he feels he was treated differently than other suicidal inmates. See (Docket #39-1 at 13). Such a claim would fall 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 Plaintiff's allegations are vague as to the identity of any comparators, and the precise difference in treatment they received, it must allow him to proceed on the claim at this time.

         Plaintiff may not proceed on his other proposed claims. First, Plaintiff's desired failure-to-protect claims are duplicative of the already existing deliberate indifference claim. All center on Plaintiff's self-harming activity and all are subject to the same standards of proof under the Eighth Amendment. Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). All of Plaintiff's failure-to-protect concerns are subsumed into his deliberate indifference claim. Second, only one official capacity claim is necessary. Suits against county employees in their official capacity are suits against the county itself. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 690 n.55 (1978). Schmaling, as Sheriff of Racine County, is the only appropriate defendant. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011).

         Plaintiff's operative claims are now the following (this supersedes the previous statement of claims in the March 7, 2017 screening order):

         Claim Number One: Deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment, against each of the Defendants;

         Claim Number Two: Intentionally treating Plaintiff differently than other similarly situated persons with respect to suicide prevention, in violation of the Fourteenth Amendment, against each of the Defendants; and

         Claim Number Three: Implementation of policies or practices which were the moving force behind the alleged constitutional violations, against Defendant Christopher Schmaling.

         The Court will further address Plaintiff's other pending motions. On March 14, 2017, Plaintiff filed a motion to alter the Court's March 7, 2017 screening order in this matter. (Docket #26). With the Court's acceptance of the second amended complaint, this motion has become moot. On March 17, 2017, Plaintiff filed another similar motion, this time requesting alteration of the Court's screening order with relation to the Court's ruling on his motion for an injunction against Racine County Jail (the “Jail”). (Docket #27). The Court denied the motion for an injunction as moot because Plaintiff was not (and is not now) housed at the Jail. (Docket #21 at 8). Plaintiff's motion to amend that ruling states that he returns to the Jail on occasion, without specifying any particular times or dates, in order to appear on criminal cases. (Docket #27). He also claims to be a “regular” at the Jail because when not incarcerated, he is arrested frequently. Id.

         Even generously reviewing the motion for injunction anew and on its merits, it must be denied. Plaintiff must establish the following to warrant entry of the requested preliminary injunction: “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” D.U. v. Rhoades, 825 F.3d 331, 335 (7th Cir. 2016) (quoting Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008)). “A preliminary injunction ordering [a] defendant to take an affirmative act rather than merely refrain from specific conduct, ” as is the case here, “is ‘cautiously viewed and sparingly issued.'” Knox v. Shearing, 637 F. App'x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)).[2] A preliminary injunction is “an extraordinary remedy and is never awarded as of right.” Id. (quoting Winter, 555 U.S. at 24).

         First, beyond his speculation that he will return to the Jail for court dates or as a “regular, ” Plaintiff provides no specific dates for any return to the Jail. See (Docket #27). The lack of a potential future injury undermines his claim for an injunction. Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996) (“Higgason stated in response to the summary judgment motion that ‘upon his release from disciplinary segregation [at WVCI], his return to the parent institution from whence he came [ISP] is a virtual certainty.' However, such an allegation does not amount to a ‘showing' or a ...


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