United States District Court, E.D. Wisconsin
BRANDON C. MCDUFFIE, Plaintiff,
CAPT. SWIEKATOWSKI, et al., Defendants.
William C. Griesbach, Chief Judge
Brandon C. McDuffie, a Wisconsin state prisoner who is
representing himself, filed a civil rights action under 42
U.S.C. § 1983, alleging that defendants violated his
Eighth Amendment rights at the Green Bay Correctional
Institution (“GBCI”). This matter comes before
the court on plaintiff's motion to proceed without
prepayment of the filing fee and for screening of the
court assessed an initial partial filing fee of $18.68. ECF
No. 5. Plaintiff paid that amount on July 27, 2017.
Therefore, the court will grant plaintiff's motion to
proceed without prepayment of the filing fee.
Prison Litigation Reform Act (“PLRA”) applies to
this action because plaintiff was incarcerated when he filed
this complaint. 28 U.S.C. § 1915. The PLRA requires
federal courts to screen complaints brought by an
incarcerated plaintiff seeking relief against a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). The court can dismiss an action or
portion thereof if the claims alleged are “frivolous or
malicious, ” fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
state a claim under the federal notice pleading system,
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “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)).
“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). The factual
content of the complaint must allow the court to “draw
the reasonable inference that defendant is liable for the
misconduct alleged.” Id. Allegations must
“raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Factual
allegations, when accepted as true, must state a claim that
is “plausible on its face.” Iqbal, 556
U.S. at 678. With this understanding, I now turn to the
factual allegations of the complaint.
is an inmate at GBCI. ECF No. 1, ¶ 3. Defendant
Swiekatowski is Captain at GBCI (id., ¶ 4);
defendant Scott Eckstein is Warden at GBCI (id.,
February 14, 2017, plaintiff had a mental breakdown and
wanted to commit suicide. Id., ¶ 7. He climbed
to the top of the HVAC vent, a structure that is about three
stories above ground level, with the intent to jump off to
his death. Id., ¶¶ 8-9. Several
individuals, including other inmates and correctional
officers, intervened to distract him. Id., ¶
10. Plaintiff's sister was called and he started to calm
down. Id. ¶¶ 11-12.
was about to ask for help to get off of the structure when
Captain Swiekatowski and the crisis response team arrived.
Id., ¶¶ 12-13. They made aggressive and
threatening statements which caused plaintiff to become upset
again. Id., ¶ 14. Plaintiff asked to see the
“psych services staff” but Captain Swiekatowski
denied the request, choosing instead to use a “chemical
agent pepper ball gun” on plaintiff. Id.,
¶¶ 15-17. The HVAC vent shaft began to falter, as
if it would collapse under plaintiff's weight, but
Captain Swiekatowski continued to shoot the semi-automatic
weapon at plaintiff's torso numerous times. Id.,
¶¶ 18-20. Captain Swiekatowski saw that plaintiff
had not fallen and aimed the weapon at his left knees
“with the intent to make him fall 3 stories to the
ground.” Id., ¶ 21.
asked to see psych services again but Captain Swiekatowski
walked away. Id., ¶¶ 23-25. Plaintiff
started to feel the effects of the chemical agent and asked
for his inhaler. Id., ¶ 26. Sergeant Cummings
(not a defendant) agreed to find the inhaler if plaintiff
agreed to come down off of the vent system. Id.,
¶ 27. Plaintiff climbed off the vent and went to the
medical unit. Id., ¶ 28. He had swelling and
severe pain and bruising on his left knee, left arm, and rib
cage area from the chemical gun. Id., ¶¶
next day, February 15, 2017, Captain Swiekatowski went to the
suicide observation cell, where plaintiff spent the night.
Id., ¶¶ 31-32. Captain Swiekatowski said
to plaintiff, “It wasn't like you to do something
like that.” Id., ¶ 32. Plaintiff asked
why he had been shot and Swiekatowski replied, “I only
shot you because we had to get showers done and you already
held up dinner.” Id., ¶¶ 33-34.
filed an inmate grievance on the incident, which Warden
Eckstein and the Corrections Complaint Examiner dismissed.
Id., ¶¶ 35-37. For relief, plaintiff seeks
declaratory relief, injunctive relief, and monetary damages.
state a claim under 42 U.S.C. § 1983, plaintiff must
show 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. Cnty.
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861
(7th Cir. 2004)). Liability under § 1983 is predicated
on a defendant's personal involvement in the
constitutional deprivation. Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). Plaintiff must prove that each