United States District Court, E.D. Wisconsin
ORDER SCREENING PLAINTIFF'S AMENDED COMPLAINT
(DKT. NO. 13)
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
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.
Screening of the Complaint
Federal Screening Standard
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).
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)).
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.
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 Â¶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
Deficient Medical Care
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 Â¶18.
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 Â¶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.
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
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
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.
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.
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
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.
Conditions of Confinement
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.
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