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Allgood v. Hert

United States District Court, W.D. Wisconsin

February 22, 2018

JAMONTE ALLGOOD, Plaintiff,
v.
CO SGT. HERT, CO WEYCKER, CO PEOTTER, RN CASSANDRA BAIER, LT. CUSHING, CO DENIAL, WARDEN SCOTT ECKSTEIN, CAPTAIN BRANT, LUSTEY, DEPUTY WARDEN SCHUELLER and JOHN KIND, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge.

         On January 3, 2018, I granted pro se plaintiff Jamonte Allgood leave to proceed with claims under the Eighth Amendment that defendants CO Sgt. Hert, CO Weycker, CO Peotter and CO Denial used excessive force against him or failed to intervene to prevent the use of excessive force and defendant RN Cassandra Baier failed to provide him adequate medical treatment. Plaintiff has now filed a proposed amended complaint, dkt. #22, a motion for temporary restraining order, dkt. #13, and a motion for emergency transfer out of the Green Bay Correctional Institution. Dkt. #20. For the reasons below, I will grant plaintiff leave to file an amended complaint and will grant him leave to proceed on claims against defendants Hert, Weycker, Peotter, Denial, Baier, Cushing and Lustey. I will deny him leave to proceed against defendants Eckstein, Brant, Schueller and Kind. I will also deny plaintiff's motions for a temporary restraining order and emergency transfer.

         Plaintiff alleges the following facts in his amended complaint.

         ALLEGATIONS OF FACT

         Plaintiff Jamonte Allgood is incarcerated at the Green Bay Correctional Institution. In July 2017, plaintiff was in the library asking for a pen. Defendants Poetter and Weycker, correctional officers, and defendant Hert, a sergeant, responded by grabbing plaintiff by the neck, throat and head and dragging him down the hall. The officers later beat him and defendant Weycker “busted” plaintiff's finger, causing him to bleed profusely. Defendant CO Denial was present and filmed the incident. Yang, a correctional officer, and defendant Cushing, a lieutenant, then arrived on the scene. Yang used excessive force on plaintiff after he was already handcuffed. Cushing watched and did not intervene.

         After the incident, defendant Cassandra Baier, a registered nurse, came to see plaintiff but refused to give him ice or treatment for his injuries. She did not take pictures of all of his injuries. Defendants Cushing, Hert, Poetter, Weycker and Denial then placed plaintiff on “control status” for three days. Plaintiff's control cell was “freezing cold” and had no light, desk, mirror, emergency intercom button, smock or blanket. The security mattress was dirty, plaintiff was denied “essential hygiene, ” including the ability to wash his hands.

         Plaintiff later received a conduct report for assaulting staff, disruptive conduct and disrespect. Defendant Captain Brant conducted the due process hearing. Plaintiff's staff advocate failed to call witnesses on plaintiff's behalf. Plaintiff was found guilty and sentenced to 180 days' disciplinary segregation. Plaintiff appealed the disciplinary decision to defendant Warden Eckstein, but it was affirmed.

         Since the July 2017 incident, plaintiff has suffered ongoing pain all over his body, including on his ribs, back, neck, arms, hands and finger. Defendant Lustey, the medical administrator at the prison, has refused to provide plaintiff medical treatment for his ongoing pain.

         OPINION

         Plaintiff's allegations may be organized into four categories: (1) excessive force; (2) denial of adequate medical care; (3) failure to provide humane living conditions; and (4) due process. I discuss each legal theory below.

         A. Excessive Force

         Claims for excessive force in the prison context are governed by the Eighth Amendment, which prohibits the “unnecessary and wanton infliction of pain” on prisoners. Hudson v. McMillian, 503 U.S. 1, 5 (1992); Estelle v. Gamble, 429 U.S. 97, 102-03 (1976). The factors relevant to deciding whether an officer used excessive force include: the need for the application of force; the relationship between the need and the amount of force that was used; the extent of the injury inflicted; the extent of the threat to the safety of staff and inmates, as reasonably perceived by the responsible officials on the basis of the facts known to them; and any efforts made to temper the severity of a forceful response. Whitley v. Albers, 475 U.S. 312, 320-21 (1986).

         Plaintiff alleges that after he asked for a pen, defendants Poetter, Weycker and Hert responded by grabbing plaintiff by the neck, throat and head and dragging him down the hall, beating him and breaking his finger. These allegations are sufficient to state a claim of excessive force. Thus plaintiff may proceed with excessive force claims against Poetter, Weycker and Hert. He may also proceed with a failure to intervene claim against defendants Denial and Cushing, based on his allegations that these defendants were present while other officers used excessive force but did not intervene to prevent or stop the excessive force. At summary judgment or trial, however, plaintiff will have to prove that Denial and Cushing could have acted to prevent any excessive force used against plaintiff. Minix v. Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010) (“[I]ndividual liability under § 1983 requires personal involvement in the alleged constitutional deprivation.”) (internal quotation omitted). Finally, I note that although plaintiff alleges that Officer Yang used excessive force against him, plaintiff did not include Yang as a defendant in the caption of his complaint. Therefore, I am assuming that plaintiff does not intend to proceed against Yang as a defendant in this lawsuit.

         B. Conditions ...


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