United States District Court, E.D. Wisconsin
ANTHONY V. CORDOVA, Plaintiff,
BRIAN FOSTER, ET AL., Defendants.
WILLIAM E. DUFFIN U.S. Magistrate Judge.
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
Motion for Leave to Proceed without Prepaying the Filing
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.
Screening 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. §
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).
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)).
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.)
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,
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.
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.
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 ...