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Cordova v. Foster

United States District Court, E.D. Wisconsin

April 26, 2019

BRIAN FOSTER, ET AL., Defendants.


          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         Plaintiff Anthony V. Cordova is a Wisconsin state prisoner who is representing himself. He filed a complaint under 42 U.S.C. § 1983 alleging that his constitutional rights have been violated while in custody at Waupun Correctional Institution. Cordova also filed a motion for leave to proceed without prepaying the filing fee and a motion to appoint counsel. The court has jurisdiction to resolve Cordova's motions and to screen the complaint based on the Wisconsin Department of Justice's limited consent to the exercise of magistrate judge jurisdiction as set forth in the Memorandum of Understanding between the Wisconsin Department of Justice and this court.

         1. Motion for Leave to Proceed without Prepaying the Filing Fee

         The Prison Litigation Reform Act (PLRA) gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee as long as they comply with certain requirements. 28 U.S.C. § 1915. One of those requirements is that they pay an initial partial filing fee. On February 25, 2019, the court ordered Cordova to pay an initial partial filing fee of $1.37. Cordova paid that fee on March 18, 2019. Accordingly, the court will grant Cordova's motion to proceed without prepaying the filing fee. He must pay the remainder of the filing fee over time as explained in this order.

         2. 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).

         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 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 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. Village of North 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)).

         2.1 The Complaint's Allegations

         At around 11:30 a.m. on August 29, 2018, Cordova stopped defendant C. Berkhurst, who was passing out medication in segregation, to tell Berkhurst that he needed to see a psychologist. Cordova told Berkhurst he was experiencing suicidal thoughts. Berkhurst just smiled and pushed the medication cart past Cordova's cell. About an hour later, at 12:30 p.m., Cordova pressed the emergency button in his cell. He told the male who responded that he was going to hurt himself. The male responded, “OK, just a minute.” (ECF No. 1 at 11.) Cordova heard nothing back. An hour later, at around 1:30 p.m., Cordova pressed his emergency button again and told the male who answered that he was suicidal and needed to speak to a psychologist. The male laughed and told Cordova, “your [sic] not going to do anything.” (Id. at 12.)

         Around 2:10 p.m., Cordova told defendant Theander, the second shift supervisor assigned to his cell range, that he was going to hurt himself- specifically, that he was going to roll up his mattress, tie his sheets around it, jam it between the wall and the toilet, put the sheet over the sink, and hang himself. The officer (presumably Theander) radioed for assistance. Once officers arrived, Cordova told them that he needed to be cuffed in the front due to a shoulder injury. The officers asked if he had a Health Services Unit (HSU) restriction. Cordova told them he did not. The officers then opened the food tray door and ordered Cordova to put his hands behind his back and through the food tray door. This caused him great pain, so he pulled his hands back into his cell. The officers told him that, if he failed to comply, they would pepper spray him. To avoid being pepper sprayed, Cordova complied.

         The door to Cordova's cell then opened and officers told him to kneel so that they could put shackles on his ankles. Although Cordova told the officers that he was in “extreme pain, ” they ignored him. After Cordova stood back up, the officers walked him to the strip search cell, where he was again told to kneel. The pain in his shoulder was so bad that he wet his pants and almost lost consciousness. He was stripped of all of his clothing and searched. At 3:00 p.m., Cordova spoke with defendant Dr. Gayle E. Griffith. He told Dr. Griffith about his suicidal thoughts, and she placed him in psychiatric observation. Dr. Griffith refused to speak to him after she made her decision to place him in observation, even though Cordova called to her from fifteen feet away.

         When Cordova arrived at his cell, he was made to kneel again and was in extreme pain. He was given a canvas skirt to wear and nothing else. He did not receive footwear, socks, a mattress, or a blanket. Cordova had to sleep on a hard rubber mat that resembles tire rubber. Defendant C.O. II Pohl refused to give Cordova a food tray on August 29, 2018, because Cordova would not kneel down at the back of his cell. For the same reason, Pohl again refused to give Cordova a food tray during first shift the next day. On August 31, 2018, defendants Lewin and Erdman refused to give Cordova a tray during first and second shifts, again because Cordova would not kneel at the back of his cell. Cordova did not receive food for three days.

         Between August 29 and August 31, 2018, Cordova did not receive any toilet paper because he would not comply with going to the back of his cell and kneeling with his hands on the wall. He had to use toilet ...

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