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Harper v. Giese

United States District Court, E.D. Wisconsin

July 9, 2018

KEVIN OMAR HARPER, Plaintiff,
v.
MICHAEL GIESE, et al., Defendants.

          SCREENING ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE

         The plaintiff, who is currently serving a state prison sentence at Dodge Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated while he was confined at the Waukesha County Jail. This matter comes before the court on Plaintiff's motion for leave to proceed without prepaying the full filing fee and to screen the complaint.

         Motion to Proceed without Prepayment of the Filing Fee

         The plaintiff is required to pay the $400.00 filing fee for this action, which includes the $350.00 statutory filing fee and a $50.00 administrative fee. See 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to proceed without prepayment of the full filing fee. In that case, the prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 statutory filing fee but not the $50.00 administrative fee. See 28 U.S.C. § 1915(b)(1). The plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $8.00. The plaintiff's motion for leave to proceed without prepaying the filing fee will be granted.

         Screening of the Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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. 28 U.S.C. § 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         To 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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).

         Allegations of the Complaint

          Plaintiff's claims arise out of an incident that he alleges occurred at the Waukesha County Jail on the evening of March 6, 2018. According to Plaintiff, Defendant Correctional Officer Bischoff came to his cell and told him to “kneel like a bitch” if Plaintiff wanted to eat dinner. Plaintiff refused, became upset, and needed to use his asthma inhaler. He alleges that he was handcuffed to his cell door while a nurse was summoned to bring the inhaler. In addition to Bischoff, Plaintiff alleges that Defendants Lt. Eric Stefonek and Correctional Officers Domurat, Miller, Holzhueter, and Cattani were present outside of his cell. When Plaintiff attempted to alert Stefonek to Bischoff's alleged actions, Bischoff allegedly grabbed his arm and attempted to physically force him into his cell, and Miller, Holzhueter, and Cattani allegedly attempted to pull his arm though the tray slot in his cell door and close the door on his body. Bischoff and Domurat then allegedly began kicking and kneeing Plaintiff, who asserts that he never tried to resist. While he was being forced into his cell, Plaintiff alleges that Stefonek was smiling like the incident was funny. Once he was in his cell, Plaintiff alleges that his wrists and hands were bleeding, that the kicks injured his leg and forced him to limp, and that his requests for medical attention were denied.

         Following the March 6 incident, Plaintiff alleges that he asked Defendants Correctional Officers Bubholtz and Diaz to allow him to use a wheelchair and shower chair to shower on March 10, but Bubholtz told him to shut up. Subsequently, while locked in the shower area, Plaintiff alleges that he slipped and fell on several discarded soap bars, leaving him in pain on the ground yelling for help and unable to move. He alleges that Bubholtz and Defendant Nurse Links came to the shower stall but refused to treat him and walked away. Later, Bubholtz, Defendant Lt. Compton, and unnamed, non-defendant members of the security staff allegedly lifted him off the ground and placed him in a wheelchair to return to his cell, but only after leaving him on the ground for more than an hour. Plaintiff alleges that he was never offered medical attention, despite asking for it several times.

         Plaintiff seeks damages from Bischoff, Domurat, Miller, Holzhueter, and Cattani for using excessive force; from Stefonek for authorizing the use of force against him; from Bubholtz and Diaz for refusing to accommodate his need for a wheelchair and shower chair; and from Bubholtz, Compton, and Links for refusing to treat him after he fell in the shower. He also seeks damages from Defendants Jail Administrator Michael Giese and Deputy Jail Administrator Wollenhaupt for not disciplining the various correctional officers against whom he raises claims.

         The Court's Analysis

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that he was (1) deprived of a federal right (2) by a person acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). Claims for excessive force fall under the Eighth Amendment's prohibition on cruel and unusual punishment, which bars “unnecessary and wanton infliction of pain, ” particularly when “totally without penological justification.” Hope v. Pelzer, 536 U.S. 730, 737 (2001). Specifically, the inquiry in claims involving allegations of excessive force by prison officials against an inmate is whether the prison official inflicted an injury “maliciously and sadistically for the very purpose of causing harm.” See Hudson v. McMillian, 503 U.S. 1, 6 (1992); Whitley v. Albers, 475 U.S. 312 (1986). Thus, the infliction of even a relatively minor or de minimis injury can constitute a violation of the Eighth Amendment's prohibition of “cruel and unusual” punishment if it is done maliciously. Hudson, 503 U.S. at 9 (“When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. . . . This is true whether or not significant injury is evident.”).

         This subjective standard for excessive force claims makes it difficult to rule out Eight Amendment excessive force claims at the screening phase, particularly in light of the liberality with which the court must construe Plaintiff's complaint. Here, Plaintiff contends that on March 6 Defendants Bischoff, Domurat, Miller, Holzhueter, and Cattani physically forced him into his cell in a manner that caused him to bleed on his hands and wrists and injured his leg to the point ...


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