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Bella v. Foster

United States District Court, E.D. Wisconsin

November 1, 2019

JOSHUA R. BELLA, Plaintiff,
BRIAN FOSTER, et al., Defendants.


          Nancy Joseph United States Magistrate Judge.

         On October 17, 2019, this court screened Joshua R. Bella's complaint, determined that the complaint did not state a claim, and granted Bella leave to file an amended complaint. (ECF No. 16.) On October 30, 2019, Bella filed an amended complaint (ECF No. 17), which is now before the court for screening under 28 U.S.C. § 1915A(a).

         As with the initial complaint, the court must dismiss the amended complaint if it raises 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).

         In determining whether the complaint states a claim, the court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The complaint must contain enough facts, accepted as true, to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes pro se complaints liberally and it holds them to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).

         1. Bella's Amended Allegations

         Bella sues the same four defendants listed in his initial complaint: Warden Brian Foster, Security Director Anthony Meli, Captain Jeffrey Westra, [1] and Tonia Moon. (ECF No. 17 at 1, 3.)

         The fifteen paragraphs listed under “Allegation Facts” are effectively identical to those listed in Bella's initial complaint. (Id. at 3-5.) He reiterates his allegations about his medical condition (Ehlers Danlos Syndrome Type 3 (“EDS”)), history of abuse because of his condition, and unsuccessful requests to be moved to a different area of the prison. (Id.; see ECF No. 16 at 4-5.)

         Bella newly fleshes out his allegations about each defendant. He alleges that he wrote a letter to Warden Foster in June 2019 citing his health problems, accusing Foster of not keeping him safe, and requesting a move to Southwest Cell Housing. (ECF No. 17 at 5.) Bella says Foster “was fully aware of everything going on and Foster deliberately ignored Bella's letter and took no reasonable action to keep Bella or his property safe.” (Id.) Bella asserts, without elaboration, that he previously was housed with violent inmates “intentionally to punish Bella for standing up for his rights in the past” by filing complaints about Waupun. (Id.)

         Bella alleges much of the same against Meli, nearly verbatim. He alleges that Meli ignored his letters requesting a move from a cell where he was housed with a cellmate who, Bella alleges, “has a long history of violent behavior, which a simple check on his security file would show.” (Id. at 6.) Bella does not allege that Meli ordered Bella to be housed with that inmate but says that Meli “knew a move to that room would cause Bella to be assaulted/extorted/robbed.” (Id.) Bella further alleges that “there is a very distinctive pattern over 5 years of Bella intentionally being celled up with similar inmates then Meli refusing to intervene.” (Id.) Bella alleges that Meli has consistently allowed him to be housed with violent cellmates “to punish Bella for standing up for his civil rights.” (Id.)

         Bella's allegations against Westra are virtually identical to his allegations against Foster. (Id. at 6-7.) He alleges that he wrote to Westra as recently as October 13 and 16, 2019, “alerting him of his current danger and of active extortion but he [Westra] is still refusing to take any action to keep Bella and his property safe.” (Id. at 7.) (He alleges the same, verbatim, against Foster. (Id. at 6.).)

         Bella alleges that he wrote complaints about Foster, Meli, and Westra, but Moon “used her position to deliberately cover the assault up by returning compl[ai]nt wrongly without even processing it.” (Id. at 7.) He says Moon neglected “her duty to report security threats” when she failed to tell staff about Bella's complaints of danger. (Id.) He accuses Moon of “deliberately us[ing] her authority to reject the complaint without taking any steps to ensure reasonable steps were taken to keep Bella safe.” (Id.)

         Bella asserts he is in imminent danger and seeks declaratory relief, an injunction ordering him moved to a “permanent ‘red tag' single cell, ” and monetary damages against each defendant. (Id. at 8-9.)

         2. ...

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