United States District Court, E.D. Wisconsin
JARROD N. GANT, Plaintiff,
CO ADKINS, SGT KELLER, and SCOTT M. ECKSTEIN Defendants.
WILLIAM C. GRIESBACH, CHIEF JUDGE.
plaintiff, who is currently serving a state prison sentence
at Green Bay Correctional Institution (GBCI) and representing
himself, filed a complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. This matter
comes before the court on the plaintiff's motion for
leave to proceed without prepaying the full filing fee and to
screen the complaint.
to Proceed without Prepayment of the Filing Fee
plaintiff has requested leave to proceed without prepayment
of the full filing fee (in forma pauperis). A
prisoner plaintiff proceeding in forma pauperis is
required to pay the full amount of the $350.00 filing fee
over time. 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 $0.13. The plaintiff's
motion for leave to proceed without prepaying the filing fee
will be granted.
of the Complaint
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).
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).
of the Complaint
6, 2018, the plaintiff alleges he suffered an asthma attack
while exercising in his cell in the Restrictive Housing Unit
of GBCI. The plaintiff states that he attempted to make
several calls via his cell intercom to contact an officer and
that CO Adkins could be heard through the intercom speaker
continuously disconnecting his calls. CO Adkins answered the
plaintiff's call on his third attempt, and asked him what
his medical emergency was. The plaintiff responded that he
was having an asthma attack and that he should send a
sergeant to his cell. CO Adkins allegedly responded by saying
why are you yelling at me. The plaintiff states that he told
CO Adkins that his calls were getting disconnected and asked
why his calls were being disconnected. CO Adkins allegedly
then responded that the plaintiff did not sound like he was
having an asthma attack and disconnected the call. The
plaintiff then proceeded to yell out of his cell to get his
neighbor's help because he could not breathe. The
plaintiff's neighboring inmates began to be loud and
boisterous and began to yell for the sergeant to come to the
plaintiff's cell to help him.
later Sgt. Keller came to the plaintiff's cell. The
plaintiff explained that he had an asthma attack while
exercising and that despite his calls for help he received no
response because his intercom calls were being disconnected
by CO Adkins. The plaintiff states that Sgt. Keller told him
he would speak with CO Adkins about disconnecting the
intercom calls and that he was placing the plaintiff on a
30-day back of cell/knee restriction for being disruptive,
which allegedly caused him physical injuries, emotional
distress, and pain and suffering. The plaintiff alleges that
neither CO Adkins nor Sgt. Keller made any attempts to get
him medical assistance. According to the plaintiff, CO Adkins
did not log this incident in the logbook in the control booth
and did not write up an incident report about the
plaintiff's asthma attack. The plaintiff also states that
when he spoke with Sgt. Keller later on October 22, 2018,
Sgt. Keller could not recall if he wrote an incident report
regarding the plaintiff's asthma attack. The plaintiff
was later seen by a nurse who acknowledged that he does have
asthma. The plaintiff is seeking both compensatory and
punitive damages, a well as a declaration that the
defendants' acts violated his constitutional rights. The
plaintiff also seeks a preliminary and permanent injunction
ordering the defendants to follow the DOC policies concerning
inmate safety and documenting incidents that occur.
state a claim under § 1983, a plaintiff must allege a
person acting under color of state law violated rights
secured by the Constitution and laws of the United States. 42
U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48
(1988). Denial of, or deliberate indifference to, a
prisoner's serious medical needs can amount to a
violation of the Eighth Amendment's proscription of cruel
and unusual punishment. Estelle v. Gamble, 429 U.S.
97, 106 (1976). To prevail on a claim for deliberate
indifference, a plaintiff must show “something
approaching a total unconcern for [his] welfare in the face
of serious risks, or a conscious, culpable refusal to prevent
harm.” Duane v. Lane, 959 F.2d 673, 677 (7th
Cir. 1992) (citing McGill v. Duckworth, 944 F.2d 344
(7th Cir. 1991)). The defendant must have known of and
disregarded an “excessive risk” to the
inmate's health or safety. Sellers v. Henman, 41
F.3d 1100, 1102 (7th Cir. 1994).
plaintiff's allegations, which the court must accept as
true at this stage, are sufficient to state a deliberate
indifference claim against CO Adkins. The plaintiff informed
CO Adkins that he was in the midst of an asthma attack and CO
Adkins ignored him, disconnected his cell intercom calls, and
did not take any steps to get medical assistance for him.
Regarding Sgt. Keller, although the plaintiff had just
suffered an asthma attack, his complaint does not allege that
he was still suffering any symptoms at the time that Sgt.
Keller spoke with him or that he was in need of medical
attention at that time. The plaintiff's claim, that Sgt.
Keller was deliberately indifferent to his serious medical
need because he did not contact health services after being
informed of his attack, ignores the fact that the prison has
a system, mainly health service requests, by which a prisoner
can notify the prison that he wishes to speak to a medical
provider. “Bureaucracies divide tasks; no prisoner is
entitled to insist that one employee do another's job,
” and the Warden of each prison “is entitled to
relegate to the prison's medical staff the provision of
good medical care.” Burks v. Raemisch, 595
F.3d 592, 595 (7th Cir. 2009). Because the plaintiff's
medical condition did not pose a serious risk to him at the
time Sgt. Keller spoke with him, Sgt. Keller was not
obligated to report his condition for him to medical staff.
In addition, although the plaintiff alleges that Sgt. Keller
should have known about his subordinate CO Adkins'
failure to log the incident in the logbook and write up an
incident report, “[l]iability depends on each
defendant's knowledge and actions, not on the knowledge
or actions of persons they supervise, ” id. at
594, and the plaintiff does not allege that Sgt. Keller had
actual knowledge of this, only that he should have known.
the plaintiff's allegations are not sufficient to state a
deliberate indifference claim against Sgt. Keller, they are
sufficient to state a retaliation claim against him.
“‘An act taken in retaliation for the exercise of
a constitutionally protected right is actionable under §
1983 even if the act, when taken for a different reason,
would have been proper.'” Lekas v. Briley,
405 F.3d 602, 614 (7th Cir. 2005) (quoting Matzker v.
Herr, 748 F.2d 1142, 1150 (7th Cir. 1984), limited
on other grounds by, Salazar v. Chicago, 940
F.2d 233, 240-41 (7th Cir. 1991)). “This includes
retaliation against an inmate for exercising his
constitutional right to access the courts or to use the
prison grievance process.” Id. “[A]
prisoner can sufficiently state a claim for relief when he
alleges that prison officials issued baseless disciplinary
tickets against him in retaliation for pursuit of
administrative grievances.” Id. Because the
plaintiff alleges that the only ...