United States District Court, E.D. Wisconsin
JARROD N. GANT, Plaintiff,
CPT. CUSHING, CO MATUSHAK, CO GIBBS, CO LUTERMAN, CO KORPITA, CO ADKINS, CO HERTZ, NURSE GARLAND, and SGT. RETZLAFF, Defendants.
William C. Griesbach, Chief United States District 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
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
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
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.
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.
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.
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, 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.
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 ...