Badgett v. Lunenberg et al
Filing
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SCREENING ORDER denying 6 MOTION to Appoint Counsel and granting 4 MOTION for Leave to Proceed Without Prepayment of the Filing Fee filed by Christopher Badgett. Defendants Dr Manlove, Tony Meli (sued as "Toni Meli"), Capt Sabish m, Lt Waller, Brian Foster (sued as "Warden Foster") and Supervisor Ludvingston (Segregation Unit Manager/Supervisor) are dismissed with prejudice. USMS shall serve a copy of the complaint upon remaining defendants. (cc: all counsel and via US Mail to Christopher Badgett and Warden)(Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER BADGETT,
Plaintiff,
v.
Case No. 17-C-49
CO LUNENBERG, et al.,
Defendants.
SCREENING ORDER
Plaintiff Christopher Badgett, who is incarcerated at the Green Bay Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This
matter comes before the court for screening Badgett’s complaint and on his motions to proceed in
forma pauperis and to appoint counsel.
A. Motion to Proceed In Forma Pauperis
The plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Badgett has filed a certified copy of his prison trust account statement
for the six-month period immediately preceding the filing of his complaint, as required under 28
U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $44.68. Badgett’s
motion to proceed in forma pauperis will be granted.
B. 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). The court may, therefore, dismiss a claim
as frivolous where it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,” although sometimes treated
as a synonym for “frivolous,” “is more usefully construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109–10 (7th Cir. 2003) (citations omitted).
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). It is not necessary for the plaintiff to plead specific facts and his statement need only
“give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
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550 U.S. at 556). The complaint’s allegations “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (citations omitted).
In considering whether a complaint states a claim, courts should follow the principles set
forth in Twombly by first, “identifying pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be
supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must,
second, “assume their veracity and then determine whether they plausibly give rise to an entitlement
to relief.” Id.
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.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. 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 the 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)).
Badgett asserts that the defendants violated his Eighth Amendment rights in a number of
ways. According to Badgett, his plight began on January 29, 2016 at the Green Bay Correctional
Institution. Badgett was placed in observation after notifying officers that he was having suicidal
thoughts. Before giving Badgett a smock, Officers Lunenberg and Steel sought to search his cell.
Rather than fully restrain Badgett, Officer Lunenberg placed a tether on his right wrist. Once Officer
Lunenberg opened Badgett’s cell door, he grabbed Badgett’s left arm and threw his body against
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Badgett’s, forcing him against the wall. Badgett alleges Officer Lunenberg bent his arm behind his
back causing excruciating pain and started banging Badgett’s head against the wall. Badgett asserts
that Officer Steel grabbed and bent his right wrist. Officer Lunenberg called for Sergeant Bouzek
to come to Badgett’s cell. Badgett claims Sergeant Bouzek ordered him to stop resisting, even
though Badgett claims he was not. Officer Sanchez also responded to the call and grabbed and bent
Badgett’s right wrist. Once Badgett was placed back in his cell, Captain Sabishm came to check on
him. Badgett claims Captain Sabishm indicated he would investigate the incident and sent Badgett
to receive medical attention.
Badgett asserts that the defendants violated his constitutional rights by using excessive force
against him. The Supreme Court has held that the core judicial inquiry in an excessive force case is
“whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” See Hudson v. McMillian, 503 U.S. 1, 6 (1992). Based on these
allegations, Badgett has stated a claim for excessive force under the Eighth Amendment against
Officers Lunenberg, Steel, and Sanchez as well as Sergeant Bouzek. See Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995) (explaining that liability may be imposed under § 1983 where an
official facilitates, approves, condones, or turns a blind eye to unconstitutional conduct).
Badgett also claims that defendants Lunenberg, Steel, and Sanchez subjected him to atypical
and significant hardship. The Fourteenth Amendment provides to inmates “a liberty interest in
avoiding transfer to more restrictive prison conditions if these conditions result in an ‘atypical and
significant hardship’ when compared to ‘the ordinary incidents of prison life.’” Townsend v. Fuchs,
522 F.3d 765, 768 (7th Cir. 2008) (quoting Sandin v. Conner, 515 U.S. 472, 484–86 (1995)). Here,
Badgett has alleged no facts that would suggest that his relatively brief time in observation was
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accompanied by atypical and significant hardship beyond the normal incidents of incarceration.
Absent such an allegation, he fails to state a claim.
Badgett further asserts that the defendants’ actions constituted deliberate indifference. To
demonstrate deliberate indifference, Badgett must show “actual knowledge by the officials and
guards of the existence of the substantial risk and that the officials had considered the possibility that
the risk could cause serious harm.” Washington v. LaPorte Cnty. Sheriff’s Dept., 306 F.3d 515, 518
(7th Cir. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). Ordinary negligence by
prison officials, however, is not enough to demonstrate an Eighth Amendment violation.
Washington, 306 F.3d at 518; see also Wilson v. City of Chicago, 6 F.3d 1233, 1241 (7th Cir. 1993)
(explaining that neither respondeat superior nor negligent supervision of subordinates is an
authorized ground for liability in a suit under § 1983). Moreover, it is not enough to show that
prison officials merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir.
1995). Here, Badgett’s allegations about the officers’ conduct do not rise to the level of deliberate
indifference. Accordingly, this claim is dismissed.
Badgett also named Dr. Manlove as a defendant, arguing that he was deliberately indifferent
to his medical needs by denying him an MRI of his shoulder. Yet, Badgett does not assert that he
has been denied medical care. He alleges that he received medical attention after the altercation and
participates in physical therapy. At most, Badgett’s complaint evinces a disagreement with the
course of his medical treatment. In short, Badgett has failed to state a cognizable Eighth
Amendment deliberate indifference claim against Dr. Manlove. See Ciarpaglini v. Saini, 352 F.3d
328 (7th Cir. 2003) (holding that a deliberate indifference claim under § 1983 cannot be based on
the prisoner’s disagreement with medical professionals about his needs).
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C. Motion to Appoint Counsel
Badgett also moves for appointment of counsel. The legal standard for deciding motions to
recruit counsel under § 1915(e)(1) in the Seventh Circuit requires the district court to consider the
difficulty of the case and the pro se plaintiff’s competence to litigate it himself. Pruitt v. Mote, 503
F.3d 647, 649 (7th Cir. 2007) (en banc). Under the Pruitt standard, Badgett has failed to
demonstrate a need for court-recruited counsel. He has not alleged that he is incompetent and has
provided no specific evidence to support a finding that he lacks the competency to litigate this action
himself. Badgett asserts that he has no formal training in the field of law. A lack of legal training,
however, is not sufficient to justify appointment of counsel. Were this the case, every pro se litigant
would be entitled to free legal representation. Badgett’s presentation of the facts in his complaint
was significantly above the average pro se litigant’s capabilities. Moreover, the difficutly of this
case—factually and legally—does not exceed Badgett’s capacity to litigate this action. Accordingly,
Badgett is not entitled to court-recruited counsel at this time. This denial is without prejudice, and
Badgett may ask the Court again at a later stage in the litigation to consider recruiting counsel.
CONCLUSION
NOW, THEREFORE, IT IS ORDERED that Badgett’s motion for leave to proceed in
forma pauperis (ECF No. 4) is GRANTED.
IT IS FURTHER ORDERED that Badgett’s motion for appointment of counsel (ECF No.
6) is DENIED.
IT IS ALSO ORDERED that Badgett’s claims against defendants Sabishm, Meli,
Ludvingston, Waller, Foster, and Manlove are DISMISSED with prejudice.
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IT IS ALSO ORDERED that the United States Marshal shall serve a copy of the complaint,
the summons, and this order upon defendants Lunenberg, Steel, Sanchez, and Bouzek pursuant to
Federal Rule of Civil Procedure 4. The plaintiff is advised that Congress requires the U.S. Marshal
Service to charge for making or attempting such service. 28 U.S.C. § 1921(a). The current fee for
waiver-of-service packages is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R.
§ 0.114(a)(2), (a)(3).
IT IS FURTHER ORDERED that defendants Lunenberg, Steel, Sanchez, and Bouzek shall
file a responsive pleading to the complaint.
IT IS ALSO ORDERED that the Secretary of the Wisconsin Department of Corrections
or his designee shall collect from Badgett’s prison trust account the balance of the filing fee by
collecting monthly payments from Badgett’s prison trust account in an amount equal to 20% of the
preceding month’s income credited to Badgett’s trust account and forwarding payments to the Clerk
of Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the case name and number assigned to this
action.
IT IS FURTHER ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined.
The plaintiff is hereby notified that he is required to send a copy of every paper or document
filed with the court to the opposing parties or their attorney(s). If the plaintiff does not have access
to a photocopy machine, he may send out identical handwritten or typed copies of any documents.
The court may disregard any papers or documents which do not indicate that a copy has been sent
to each defendant or to their attorney(s).
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The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any address changes. Failure to do
so could result in orders or other information not being timely delivered, thus affecting the legal
rights of the parties.
SO ORDERED this 7th day of February, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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