United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
CHRISTOPHER SCHMALING, DOUGLAS WEARING, LT. BRADLEY FRIEND, C.O. JOSEPH ZIMMER, and JOHN DOES Defendants.
Stadtmueller U.S. District Judge
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. 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.
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).
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
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.
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
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.
operative claims are now the following (this supersedes the
previous statement of claims in the March 7, 2017 screening
Number One: Deliberate indifference to Plaintiff's
serious medical needs, in violation of the Eighth Amendment,
against each of the Defendants;
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
Number Three: Implementation of policies or practices which
were the moving force behind the alleged constitutional
violations, against Defendant Christopher Schmaling.
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.
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)). A preliminary injunction is
“an extraordinary remedy and is never awarded as of
right.” Id. (quoting Winter, 555 U.S.
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 ...