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Sierra-Lopez v. Kozak

United States District Court, E.D. Wisconsin

July 17, 2018

KEVIN SIERRA-LOPEZ, Plaintiff,
v.
OFFICER KOZAK, CORPORAL DEQUAINE, LT RHODE, NURSE PAGELS, BROWN COUNTY JAIL, JOHN GOSSAGE, PHIL STEFFEN, CAPTAIN MALCOLMSON, and CO HIGGINS, Defendants.

          ORDER SCREENING PLAINTIFF'S AMENDED COMPLAINT (DKT. NO. 13)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         Plaintiff Kevin Sierra-Lopez, who is representing himself, is an inmate incarcerated at the Wisconsin Secure Program Facility. He filed a complaint alleging that while he was a state prisoner housed at the Brown County Jail, his constitutional rights were violated. Dkt. No. 1. This case is assigned to Magistrate Judge William Duffin. On February 28, 2018, Judge Duffin screened the plaintiff's complaint and found that he had stated an Eighth Amendment claim of deliberate indifference to his serious medical needs against defendants Officer Kozak, Corporal Dequaine and Lieutenant Rhodes; Judge Duffin concluded, however, that the plaintiff had not stated claims against the other named defendants, Dkt. No. 12 at 10. Judge Duffin noted that the plaintiff had made several claims against the Brown County Jail, but pointed out that the jail was not a legal entity that could be sued under §1983. Id. at 11. He suggested that because the jail was an arm of Brown County, Brown County might be the more appropriate party. Id. at 12. Judge Duffin gave the plaintiff an opportunity to amend his complaint to address the issues Judge Duffin had raised in his order, id., and the court received the plaintiff's amended complaint on March 13, 2018, dkt. no. 13.

         Although the plaintiff consented to Judge Duffin hearing and deciding the case, the defendants have not yet had the opportunity to decide whether to consent because, until now, the court has not screened the amended complaint, and has not ordered any complaint to be served on the defendants. Because both parties have not yet consented to the magistrate judge hearing the case, the clerk's office has referred it to this court to screen the amended complaint and decide whether it should be served on any of the defendants.

         I. Screening of the Complaint

         A. Federal Screening Standard

         The Court is required to screen complaints, including amended complaints, brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). To state a cognizable claim under the federal notice pleading system, a 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). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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).

         To state a claim for relief under 42 U.S.C. §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 the defendant acting under color of state law. Buchanan-Moore v. Cty. 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 a 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)).

         B. Plaintiff's Allegations

         In the amended complaint, the plaintiff has named the following defendants: “Sheriff John R. Gossage (Brown County Jail (BCJ)), ” Phil Steffen (“Head Lieutenant at BCJ”), Malcolmson (“Capt. at BCJ”), Officer Kozak, Corporal Dequaine, Lieutenant Rhode, Nurse Pagels, Officer Higgins, and- despite Judge Duffin's instruction-the Brown County Jail. Dkt. No. 13 at 1.

         The plaintiff alleges that while he was being housed at Brown County Jail (Jail) he was kept in “Fox Pod segregation, Day Room FI1 in cell #103 F.” Id. at ¶16. He asserts that prior to his incarceration at the Jail, he had been diagnosed with “multiple serious personality disorders” and “antisocial personality disorder.” Id. at ¶1. The plaintiff explains that he has a history of self-harm. Id. He asserts that all the defendants knew about his mental health diagnosis, and his self-harming history. Id. at ¶¶13-15.

         1. Deficient Medical Care

         The plaintiff alleges that on July 29, 2016, at approximately 3:40 p.m., he informed officers Kozak and Higgins that he felt suicidal and that he might engage in self-harm. He states he then used paper to cover the window of his cell. Id. at ¶18.

         The plaintiff asserts that Kozak told Corporal Dequaine of the plaintiff's professed intent to commit suicide or self-harm, but that no one called for medical or psychological help, or put the plaintiff on observation status or a suicide watch. Id. at ¶20. The plaintiff also alleges that Dequaine told Lieutenant Rhode about the plaintiff's self-harm and suicide threats, and that Rhode likewise took no action. Id. at ¶21. The plaintiff alleges that Dequaine sent the plaintiff a message, through Kozak, that said, “No matter what you do, you're not getting a second shower.” Id. at ¶22. The plaintiff interpreted this message as “an encouragement to plaintiff to commit, suicide or otherwise self harm.” Id. at ¶23. He says that Kozak tried to speak to him through the in-cell intercom, but that the plaintiff did not respond. Id. at ¶24.

         The plaintiff alleges that at about 4:10 p.m., Kozak passed out meal trays; he picked them up some twenty-five minutes later. Id. at ¶25. He says that Kozak and Nurse Pagels passed out medications at 5:15 p.m., about forty minutes after Kozak picked up the meal trays. Id. at ¶26.

         The plaintiff recounts that at about 5:50 p.m., he “tied a state issued green sock around his arm to stop the blood circulation, so as to better access a good vein to cut open.” Id. at ¶27. He then took “pieces of metal that [he] connected to a pencil, ” and began to cut his arm. He opened a “long wide gash” in his right forearm, which bled profusely. Id. A neighboring inmate, hearing the noises the plaintiff was making, notified the unit staff that the plaintiff was trying to commit suicide. Id. at ¶28. Kozak responded to the plaintiff's cell, the used the emergency call button to notify other staff. Id. at ¶29. Once other members of the staff had arrived, the plaintiff says, he stood at his cell door, showed the staff that he had a “hand full of psychotropic pills, ” then put the pills in his mouth and swallowed them “in an attempt to further facilitate his suicide.” Id. at ¶30. The plaintiff says that the “defendants” then removed him from his cell and put him in a restraint chair. Id. at ¶31.

         Nurse Pagels asked the plaintiff why he cut himself; the plaintiff responded that did it because “he could not take being confined to a cell 24 hours per day, 7 days per week without dayroom, visits, recreation, phone calls, religious material (books, song and prayer lists), or services provided; and having received no meaningful treatment for his mental condition.” Id. at ¶32. The plaintiff asserts that he also told Pagels he had informed the unit staff that he was going to harm himself, but that they didn't try to stop him. Id. at ¶33. He alleges that Pagels responded “I'll wipe your wound and place a gauze of cotton in it. And I'll come back after I finish med. pass. So for now think about what you just did.” Id. at ¶34. The plaintiff says that he told Pagels that she could not punish him for being suicidal, and that he needed stitches. He says Pagels left the area. Id. at ¶35.

         The plaintiff was still strapped into the restraint chair at 7:15 p.m., when the chaplain and pastor (not defendants) were speaking to him. The plaintiff says that Dequaine told the chaplain and pastor to leave. Id. at ¶36. Sometime-the plaintiff doesn't say when-the gauze that Pagels had put on the cut got stuck to his skin with dried blood; he says that when Pagels “ripped the gauze out of the wound it began to bleed again.” Id. at ¶37. The plaintiff states that Pagels sprayed the wound with “something” and applied cream. Id. at ¶38. The plaintiff again told Pagels that he needed stitches, that what she was doing was wrong, and that it was causing him more pain. The plaintiff alleges that Pagels responded she would not apply stitches and that the plaintiff “should not have cut [himself] to begin with.” Id. The plaintiff states he told Pagels that he did not want the bandage or the gauze; Pagels responded by grabbing his arm, at which point he told her not to touch him and to leave him alone. Id. at ¶39.

         The plaintiff asserts that Lieutenant Trinker (not a defendant) took two pictures of the wound, id. at ¶40, and that at about 11:30 p.m., the plaintiff was placed on twenty-four hour observation, id. at ¶41. Going forward, Registered Nurse Emily Blozinsky (not a defendant) cleaned and treated the plaintiff's wound almost daily. Id. at ¶42. He states that when he told Blozinsky “the gauze got stuck in the wound and why the wound continued to bleed, ” Blozinsky responded, “Nurse Pagel should have never put gauze in an open wound, [b]ecause it'll dry and the gauze will be stuck in the wound by the dried blood.” Id. at ¶42.

         The plaintiff alleges that if Kozak, Rhode, Higgins and Dequaine notified medical or psychological personnel about his threats of self-harm on July 29, 2016, he would have been put on suicide watch, and wouldn't have been been able to hurt himself. Id. at ¶55. He also alleges that because of defendant Sheriff John R. Gossage's failure to properly train his staff at the Jail, a “widespread, well-settled practice and custom that allowed [staff on the restrictive housing unit] to turn a blind eye and ignore detainee's and prisoner's threat of self-harm” developed. Id. at ¶59.

         2. Conditions of Confinement

         The plaintiff claims that while confined in “indefinite longterm [sic] solitary confinement” at the Jail, he was subjected to the following conditions of confinement: denied access to religious materials and services, visitation or calls with family and friends, bedding (sheets/pillows), clocks, dental care products, hair products (i.e., shampoo, conditioner, hair gel), grooming supplies (i.e. razors, nail clippers, wash cloths), canteen/commissary, indigent haircuts, sunlight or outside air, photographs, reading materials, and electronics (i.e. radio, television). Id. at ¶¶44, 48. He says that these conditions were caused by policies, rules and practices implemented by Gossage, Steffen and Malcolmson. Id. at ¶42. He also alleges that he was subjected to twenty-four-hour cell illumination while in the segregation unit and that the cells were cold, filthy, and unsanitary. Id. at ¶48.

         The plaintiff asserts that on July 29, 2016, he filed a grievance regarding his lack of access to religious materials. Id. at ¶44. In the grievance, he alleged that he had spoken with the chaplain, who informed him that she had written several request slips for the plaintiff and sent him two books and songs about God. The plaintiff says he asserted that he did not receive the request slips or any of the ...


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