United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
MICHAEL J. ANDERSON, BARBARA TEELING, and JOHN DOES, Defendants.
Stadtmueller, U.S. District Judge.
Raymond J. Bergeron Davila proceeds in this matter pro
se. He filed a complaint alleging that Defendants
violated his constitutional rights. (Docket #1). This matter
comes before the court on Plaintiff's petition to proceed
without prepayment of the filing fee (in forma
pauperis). (Docket #6). Due to Plaintiff's
indigence, the Court waived payment of an initial partial
filing fee (“IPFF”) in his case. (Docket
The Court proceeds to screen the complaint.
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an 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. Id. §
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). 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.
“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- 10 (7th Cir. 2003)
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 and his
statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, a complaint that offers mere
“labels and conclusions” or a “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. (citing
Twombly, 550 U.S. at 556). 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).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying 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, second, “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. Section 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 a person or
persons acting under color of state law. Buchanan-Moore
v. County 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 the 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,
are employees of the Racine County Jail (the
“Jail”). Plaintiff has been regularly housed at
the Jail in connection with various state criminal cases
pending against him. Plaintiff alleges that on January 16,
2019, Defendants Michael J. Anderson (“Anderson”)
and Barbara Teeling (“Teeling”) applied excessive
force to him while he was locked in a restraint chair.
(Docket #1). He further alleges that the Doe defendants were
present but did nothing to stop the attacks. Id.
of excessive force against officials at county jails are
typically brought pursuant to the Fourteenth Amendment's
right to due process, which applies to pre-trial detainees
prior to their conviction of a crime. Plaintiff alleges that
he was already convicted as of January 16, 2019 and was in
the Jail awaiting his sentencing hearing. Thus, he seeks to
proceed against Anderson and Teeling under the Eighth
Amendment, which protects convicted prisoners. However, the
Seventh Circuit holds that prior to sentencing, the
Fourteenth Amendment remains the source of an inmate's
right to be free of excessive force. Lewis v.
Downey, 581 F.3d 467, 473-75 (7th Cir. 2009). In any
event, this aids Plaintiff's claim, as the due process
clause “provides at least as much, and probably more,
protection against punishment as does the Eighth
Amendment's ban on cruel and unusual punishment.”
Forrest v. Prine, 620 F.3d 739, 744 (7th Cir. 2010).
However, “the exact contours of any additional
safeguards” provided by the Fourteenth Amendment
“remain undefined.” Id. Thus, courts
still turn to the traditional Eighth Amendment analysis to
guide their assessment of excessive force claims.
Eighth Amendment prohibits the “unnecessary and wanton
infliction of pain” on prisoners. Outlaw v.
Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). When a
correctional officer is accused of using excessive force, the
core inquiry is “whether force was applied in a
good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Hudson
v. McMillian, 503 U.S. 1, 7 (1992); Santiago v.
Walls, 599 F.3d 749, 757 (7th Cir. 2010). Several
factors are relevant to this determination, including the
need for force, the amount applied, the threat the officer
reasonably perceived, the effort made to temper the severity
of the force used, and the extent of the injury caused to the
prisoner. Hudson, 503 U.S. at 7; Fillmore v.
Page, 358 F.3d 496, 504 (7th Cir. 2004). Taking
Plaintiff's allegations as true, Anderson and
Teeling's conduct could be viewed as excessive force.
Whether the evidence bears this out must be left for another
day. For now, Plaintiff has stated a claim for violation of
his Eighth Amendment rights against Anderson and Teeling.
they do not use any force themselves, prison officials can be
liable for another officer's use of excessive force if
they have “a realistic opportunity to step forward and
prevent” the attack but fail to do so. Harper v.
Albert, 400 F.3d 1052, 1064 (7th Cir. 2005). A
failure-to-intervene claim requires the plaintiff to
establish an underlying constitutional violation, as well as
proof that the official who did not intervene acted
“with a deliberate or reckless disregard of the
plaintiff's constitutional rights.”
Fillmore, 358 F.3d at 506. As with the excessive
force claim, this is a fact-intensive inquiry, and the
assessment of those facts must be left for a later time.
Plaintiff may proceed on a failure-to-intervene claim against
the Doe defendants.
the Court finds that Plaintiff may proceed on the following
claims pursuant to 28 U.S.C. § 1915A(b):
Claim One: The use of excessive force
against Plaintiff, in violation of the Fourteenth Amendment,
by Anderson and Teeling on January 16, 2019.
Claim Two: Failing to intervene to prevent
the use of excessive force against Plaintiff, in violation of
the Fourteenth Amendment, by the Doe ...