United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB District Judge.
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
alleges the following facts in his amended complaint.
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
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.
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.
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.
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.
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,
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