United States District Court, E.D. Wisconsin
JOHN H. BALSEWICZ, also known as MELISSA BALSEWICZ, Plaintiff,
SGT. JON PAWLKY, Defendant.
STADTMUELLER U.S. DISTRICT JUDGE
who is incarcerated at Waupun Correctional Institution, filed
a pro se complaint under 42 U.S.C. § 1983,
alleging that her civil rights were violated. (Docket #1).
This matter comes before the Court on Plaintiff's motion
to proceed in forma pauperis. (Docket #2). Plaintiff
has been assessed and paid an initial partial filing fee of
$27.17. 28 U.S.C. § 1915(b)(4).
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).
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 Atlantic 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 relief.” Id.
state a claim for relief under 42 U.S.C. § 1983, a
plaintiff must allege that: (1) she was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon her 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); 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)).
is a transgender inmate incarcerated at Waupun Correctional
Institution (“WCI”). Her allegations in this case
arise from Defendant's alleged failure to protect her
from being beaten by another inmate, Denzel Samonte Rivers
(“Rivers”). Specifically, Plaintiff alleges that
on May 5, 2017, Rivers, who is not transgender, threatened
her while she was in the bath house during the time allotted
for transgender inmates and newly arriving inmates to shower.
(Docket #1 at 4, 6). Plaintiff immediately told Defendant,
Sergeant Jon Pawlky, that Rivers had just threatened her with
physical violence. Id. at 4. Plaintiff also told
Defendant that Rivers is not transgender (and was not a new
inmate) and therefore should not be permitted to shower at
that time. Id.
days later, on May 7, 2017, Plaintiff had another altercation
with Rivers. They were both in the dining hall around the
lunch hour and Rivers punched Plaintiff in her head several
times for no reason. Id. at 5. Plaintiff collapsed
to the floor. Id. Rivers kicked Plaintiff while she
laid unconscious. Id. Another inmate at WCI
apparently heard Rivers brag about having beaten up Plaintiff
because she “snitched” to Defendant about the May
5 bath house threat. Id. at 6. Plaintiff eventually
got up and informed security about the beating. Id.
at 5. She was examined by medical staff and allowed to return
to her cell. Id. Rivers was relocated to a
restrictive housing unit. Id. Later that day,
Plaintiff asked Defendant if he had done anything with or
about her May 5 complaint concerning Rivers. Id.
Defendant admitted that he had not documented the incident
Plaintiff reported on May 5. Id.
tried to file inmate grievances about the threat and the
beating, but complaint examiner Tonia Moon
(“Moon”), who is not a defendant, allegedly
frustrated Plaintiff's efforts to do so. Id.
Plaintiff suspects Moon was protecting Defendant.
Id. Plaintiff also alleges that another transgender
inmate, Homer S. “Gia” Washington, was threatened
and subsequently beaten by Rivers in July 2017, and none of
the prison staff stepped in to protect her. Id. at
7-8. Finally, Plaintiff alleges that in 2015, she complained
of being victimized by her cellmate, and her cellmate was not
disciplined. Id. at 7. She believes this is unfair
treatment, because transgender inmates are swiftly punished
for their misconduct. Id.
these allegations, Plaintiff seeks to bring an Eighth
Amendment claim against Defendant for his failure to protect
her from the substantial risk of harm that Rivers posed to
her. Id. at 9.
Eighth Amendment protects prisoners against the infliction of
cruel and unusual punishment. Mayoral v. Sheahan,
245 F.3d 934, 938 (7th Cir. 2001). “Because officials
have taken away virtually all of a prisoner's ability to
protect himself, the Constitution imposes on officials the
duty to protect those in their charge from harm from other
prisoners.” Id. But the Eighth Amendment is
not violated every time an inmate gets attacked by another
inmate; prisons, after all, are dangerous places by their
nature. Dale v. Poston, 548 F.3d 563, 569 (7th Cir.
2008). And so, “an inmate has no claim ‘unless
the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also
draw the inference.'” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). It is
possible to show that a prison official actually knew of the
risk because of circumstantial evidence or because the risk
was obvious, longstanding, pervasive, or well-documented.
Farmer, 511 U.S. at 842; Mayoral, 245 F.3d
at 938-39. Once a prison official knows about a serious risk
of harm, he has an obligation “to take reasonable
measures to abate it.” Dale, 548 F.3d at 569
(quoting Borello v. Allison, 446 F.3d 742, 747 (7th
Cir. 2006)). An official's response may be reasonable
even if it does not prevent the harm. Id.
complaint passes the low bar of screening to state a claim
against Defendant for deliberate indifference to the risk of
harm Rivers posed to Plaintiff. Plaintiff alleges that she
put Defendant on notice of a threat of violence posed by a
specific inmate, and that Defendant chose to do nothing to
abate that threat. Factual development might reveal that
Defendant did not have actual knowledge of impending harm,
see Dale, 548 F.3d at 569 (“[A]s the vagueness
of a threat increases, the likelihood of actual knowledge of
impending harm decreases.”) (quotation omitted), or an
ability to respond, see Id. (“The ultimate
measure of the adequacy of the response is therefore
reasonableness in light of the surrounding
circumstances.”). Those issues must be left for factual
Plaintiff shall be permitted to proceed on a claim of
deliberate indifference to a serious risk to her safety, in
violation of the Eighth Amendment, against Defendant ...