United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
JACLYN KALLIE, MELISSA MORAN, STEVEN CLOPE, ANTHONY BOSE, ROBERT MASTRONARDI, MR. ECKBLAD, and JOHN DOES, Defendants.
Stadtmueller U.S. District Judge.
Raymond J. Bergeron Davila, who is incarcerated at Waupun
Correctional Institution, proceeds in this matter pro
se. He filed a complaint alleging that the defendants
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #2). Due to Plaintiff's
indigence, the Court waived payment of an initial partial
filing fee in his case. (Docket #6). The Court proceeds to
screen the complaint.
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 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. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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 and 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)). However, a complaint that offers mere
“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). 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. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying 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, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
state a claim for relief under 42 U.S.C. Section 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) (citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged
to give the 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,
alleges that on November 21, 2017, he was incarcerated at the
Racine County Jail. (Docket #1 at 1). He was placed into a
restraint chair due to his threats of engaging in
self-harming conduct. Id. He then began to
“bite himself drawing blood.” Id.
Plaintiff states that Defendants Melissa Moran, Steven Clope,
Mr. Eckblad, Robert Mastronardi, and two John Doe
correctional officers observed this behavior during the first
shift on November 21, but did not physically intervene to
stop Plaintiff from biting himself. Id. at 2.
Plaintiff further alleges that Defendants Anthony Bose and
seven other John Doe correctional officers did the same as
Plaintiff's biting continued into the second shift.
Id. at 2-3. Also during this time, a John Doe member
of the Jail's mental health treatment staff refused to
treat Plaintiff. Id. at 4.
may proceed against the above-named Defendants for their
deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment. Claims for deliberate
indifferent to an inmate's suicide risk are legion in
federal courts, and so extensive case law has developed to
interpret them. The basic formulation of the claim involves
an objective and a subjective component. Collins v.
Seeman, 462 F.3d 757, 760 (7th Cir. 2006). First,
Plaintiff must show that the harm (or potential harm) was
objectively, sufficiently serious and a substantial risk to
his health. Id.; Farmer v. Brennan, 511 U.S. 825,
832 (1994). “It goes without saying that ‘suicide
is a serious harm.'” Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001) (quoting
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261
(7th Cir. 1996)). While it is not clear that Plaintiff's
biting could have actually led to his death, it was
nevertheless a serious self-harming action.
Plaintiff must establish that Defendants displayed deliberate
indifference to his risk of suicide. Collins, 462
F.3d at 761; Sanville, 266 F.3d at 733. This, in
turn, requires a dual showing that Defendants (1)
subjectively knew that Plaintiff was at substantial risk of
committing suicide and (2) were deliberately indifferent to
that risk. Matos ex rel. Matos v. O'Sullivan,
335 F.3d 553, 556 (7th Cir. 2003). Plaintiff's
allegations, viewed generously, can support each showing.
Plaintiff alleges that each defendant knew he was biting
himself severely, and that they did nothing to stop it.
remainder of Plaintiff's allegations are directed at
Defendant Jaclyn Kallie. (Docket #1 at 4-7). Kallie is an
attorney, and she and her firm of Bascom, Budish & Ceman,
S.C., have served as defense counsel for the Jail and its
staff in other civil actions brought against them by
Plaintiff. See, e.g., Raymond J. Bergeron Davila
v. Barbara A. Teeling, 17-CV-337-JPS (E.D. Wis.).
Plaintiff alleges that while litigating his other cases, he
informed Kallie that he would engage in self-harming behavior
on November 21, and that she failed to inform Jail staff
about the threat. (Docket #1 at 5-6). He maintains that like
the Jail staff, she too was deliberately indifferent to his
risk of suicide. Id. at 6-7.
may not proceed on a claim against Kallie for numerous
reasons, but only two need be mentioned. First, Kallie is a
private attorney, not a state actor, and is thus not amenable
to suit under Section 1983. Hansen v. Ahlgrimm, 520
F.3d 768, 770 (7th Cir. 1975). Second, even assuming this
were not the case, there is no indication that Kallie had any
role in Plaintiff's healthcare at the Jail. Defendants
alone had legal custody of Plaintiff and could direct his
care in accordance with his medical needs and their
correctional prerogatives. Indeed, it is likely that only
Defendants' superiors within the Racine County
Sheriff's Office (or the county government) could order
them to do anything with respect to Plaintiff's care.
Simply complaining to Kallie does not serve to rope her into
an alleged constitutional violation. See Burks v.
Raemisch, 555 F.3d 592, 595 (7th Cir. 2009); George
v. Smith, 507 F.3d 605, 609-10 (7th Cir.
the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Deliberate
indifference to Plaintiff's serious medical needs, namely
his risk of suicide, on November 21, 2017, in violation of
the Eighth Amendment, against Defendants Melissa Moran,
Steven Clope, Anthony Bose, Robert Mastronardi, Mr. Eckblad,
and John Does 1 - 10.
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) ...