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McDuffie v. Swiekatowski

United States District Court, E.D. Wisconsin

August 10, 2017

CAPT. SWIEKATOWSKI, et al., Defendants.


          William C. Griesbach, Chief Judge

         Plaintiff 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 complaint.

         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.

         The 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).

         To 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.


         Plaintiff 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., ¶ 5).

         On 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.

         Plaintiff 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.

         Plaintiff 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., ¶¶ 29-30.

         The 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.

         Plaintiff 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.


         To 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 ...

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