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Gant v. CPT. Cushing

United States District Court, E.D. Wisconsin

June 5, 2019

JARROD N. GANT, Plaintiff,


          William C. Griesbach, Chief United States District Judge.

         The 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.

         Motion to Proceed without Prepayment of the Filing Fee

         On May 9, 2019, the court ordered that the plaintiff would not be required to pay an initial partial filing fee and gave the plaintiff 21 days to notify the court if he wished to voluntarily dismiss the action to avoid the possibility of incurring a strike under 28 U.S.C. § 1915(g). To date, the plaintiff has not filed a notice of voluntary dismissal. Accordingly, the court will proceed to screen the plaintiff's complaint.

         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). 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).

         To 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).

         Allegations of the Complaint

         On March 31, 2019, Captain Cushing, Sergeant Retzlaff, Officer Gibbs, and other correctional officers responded to a medical emergency situation in the cell next to the plaintiff's in the Restricted Housing Unit (RHU) of GBCI. The neighboring inmate “was causing self harm and refusing to cooperate with staff.” Dkt. No. 1 at 5. The inmate was warned that if he did not comply with their orders, the officers would be forced to use an incapacitating chemical agent on him. After the warning was issued to the neighboring inmate, the plaintiff yelled out his door, requesting that he be pulled out of his cell before the incapacitating agent is used because he has asthma and has needed medical treatment in the past when a chemical agent has been used against a neighboring inmate. The plaintiff alleges that Cushing ignored his yelling, continued to address his neighboring inmate, and, after about ten minutes, Retzlaff administered an incapacitating chemical agent into the neighboring inmate's cell without turning off the ventilation system in that wing of the RHU.

         Following the use of the incapacitating chemical agent, the plaintiff immediately pushed his medical emergency intercom and told an officer that he needed to be taken out of his cell because fumes from the neighboring cell began to enter his cell. After two to three minutes, the plaintiff observed Officer Gibbs outside his cell “choking from the chemical agents, ” and another officer went and retrieved gas masks for the officers. Id. at 6. The plaintiff then began to choke, felt his throat restrict, and began to panic.

         After fifteen to twenty minutes, Officer Korpita came to the plaintiff's cell door and allegedly observed him laying on his cell floor. The plaintiff was also allegedly unresponsive to Korpita's attempts to get him to come to the door to be restrained so that he could receive medical attention. Cushing came to the plaintiff's cell door and also attempted to get him to come to the door to be restrained. After a “long period of time, ” Cushing ordered Retzlaff to assemble a cell extraction team to remove the plaintiff from his cell. Id. at 7.

         After the cell extraction team arrived five to ten minutes later, Cushing attempted once more to get the plaintiff to come to the door for about three to five minutes. As a result of the plaintiff's continued non-responsiveness, Cushing ordered the extraction team into his cell. Gibbs took the lead position and allegedly jumped on the plaintiff and turned him over while forcing his face into the floor. Officers Matushak, Korpita, Hertz, and Adkins entered the plaintiff's cell and forcibly placed him in restraints. Officer Luterman recorded the extraction and did not come into direct contact with the plaintiff. The plaintiff was placed in a wheel chair and taken to the health services unit (HSU).

         At the HSU, Nurse Garland took the plaintiff's vitals, listened to his lungs, and observed his breathing. During this time the plaintiff was being held up by two officers and was having difficulties breathing. While the plaintiff continued to struggle to breathe, Garland allegedly asked him “what are you doing” and instructed him to breathe. Id. at 9. After three to five minutes, Cushing and Garland allegedly asked the plaintiff why he was having this reaction, stated that the chemical agent used can be used on people with asthma, and said they have never seen someone react like this to the spray. Garland then allegedly asked the plaintiff, “What would you like me to do for you right now? How can I help you at this time?” Id. at 10. The plaintiff did not respond to Garland's question. Cushing then ordered the plaintiff be escorted back to his cell.

         “A short time later, ” Cushing came to the plaintiff's cell and informed him that he would be issuing him a conduct report for misuse of medical health services. The plaintiff alleges that as a result of the defendants' actions, his shoulder and back were injured and the failure to provide him treatment resulted in physical and emotional pain. The plaintiff seeks monetary relief, in the form of compensatory and punitive damages, and a preliminary and permanent injunction preventing the defendants from using an “extraction team against any non-threatening inmate who is in the event of ...

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