United States District Court, E.D. Wisconsin
Stadtmueller, U.S. District Judge.
18, 2017, plaintiff Jimmy Zavala, a Wisconsin state prisoner
who is representing himself, filed a complaint alleging that
his civil rights had been violated. (Docket #1). This case is
currently assigned to U.S. Magistrate Judge David E. Jones.
However, because not all parties have had the opportunity to
consent to magistrate judge jurisdiction, the case was
referred to a U.S. District Court Judge for the limited
purpose of screening the complaint. The case will be returned
to Magistrate Judge Jones after entry of this order.
Prison Litigation Reform Act (PLRA) gives courts discretion
to allow prisoners to proceed with their lawsuits without
prepaying the $350 filing fee, as long as they comply with
certain requirements. 28 U.S.C. § 1915. One of those
requirements is that the prisoner pay an initial partial
filing fee. On July 28, 2017, Judge Jones assessed an initial
partial filing fee of $24.30. (Docket #8.) Plaintiff paid
that fee on August 7, 2017. The Court will grant
Plaintiff's motion to proceed without prepayment of the
full filing fee. (Docket #2). He is required to pay the
remainder of the filing fee over time in the manner explained
at the end of this order.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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. § 1915A(b). A claim 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);
Gladney v. Pendelton Corr. Facility, 302 F.3d 773,
774 (7th Cir. 2002). 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;
Gladney, 302 F.3d at 774. "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 (7th Cir. 2003); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
"'labels and conclusions'" or
"'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. The complaint allegations "must be enough
to raise a right to relief above the speculative level."
Twombly, 550 U.S. at 555; Christopher, 384
F.3d at 881.
considering whether a complaint states a claim, courts should
first "identif[y] 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 "assume their veracity and then determine
whether they plausibly give rise to an entitlement to
state a claim for relief under 42 U.S.C. § 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); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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 he was working in the prison laundry department
when Defendant CO Aselson began to harass him by making
racial comments. (Docket #1 at 1.) Plaintiff states that he
was ignoring Aselson, but, after Aselson called his name,
Plaintiff turned to look at him. Id. Aselson then
threw a roll of balled-up tape, which hit Plaintiff in the
face. Id. Plaintiff alleges that his face
immediately swelled up and the wound later became infected.
Id. Plaintiff asserts that he has been prescribed
medication for the wound and that he has experienced
significant pain as a result of the injury. Id. at
asserts that he told staff what happened, but they did not do
anything. Id. at 1. He continued to work in the same
area as Aselson. Id. About five days after the
incident, Plaintiff told Defendant Captain Primmer about the
incident via a request slip. Id. The next day,
Primmer and Captain Gardner (who is not a defendant) removed
Plaintiff from his job pending an investigation into the
alleged misconduct. Id.
three weeks later, Primmer told Plaintiff he could return to
work; they had concluded the investigation. Id.
Primmer assured Plaintiff that he could assume nothing like
that would happen again. Id. Plaintiff asked Primmer
to keep the video footage so he could get a copy, but Primmer
told him there was no need for that because Aselson admitted
to the misconduct. Id. Plaintiff states that
Defendant John Doe destroyed the video footage, even though
he asked Primmer to preserve it. Id. at 2.
alleges that defendant Warden Gary Boughton had an obligation
to protect him, yet he allowed Plaintiff to be placed back in
the same workspace as Aselson even though Aselson admitted to
the misconduct. Id. Plaintiff also alleges that
Primmer retaliated against him for making the complaint by
forcing him to work with Aselson after the incident.
1983 "creates a cause of action based on personal
liability and predicated upon fault; thus liability does not
attach unless the individual defendant caused or participated
in a constitutional violation." Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996). There is no
supervisory liability, collective liability, or vicarious
liability under 42 U.S.C. § 1983. See Pacelli v.
deVito, 972 F.2d 871, 877 (7th Cir. 1992). In other
words, supervisors such as Warden Boughton will not be held
liable for the misconduct of those they oversee. Supervisors
will be liable only if they are personally involved in or
responsible for the violation of a plaintiff's civil
rights. Here, there is no allegation that Warden Boughton
even knew about the incident, let alone that he was
personally involved in or responsible for it. As such,
Plaintiff fails to state a claim against him.
state an excessive force claim under the Eighth Amendment, a
plaintiff must allege that a prison official applied force
"maliciously and sadistically to cause harm."
Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010). The
Court will allow Plaintiff to proceed against Aselson on an
excessive force claim based on his allegations that he threw
balled-up tape at Plaintiff's face for no reason and with
sufficient force to cause significant injury.
state a First Amendment retaliation claim, a plaintiff must
allege that (1) he engaged in an activity protected by the
First Amendment; (2) he suffered a deprivation that would
likely deter First Amendment activity in the future; and (3)
the First Amendment activity was "at least a motivating
factor" in the defendant's decision to ...