Hoskins v. Waukesha County Jail Administration et al

Filing 36

SCREENING ORDER. Nurse Zerbst is dismissed. The United States Marshal shall serve a copy of the complaint and this order upon Officer Holzhueter, Officer Buboltz, and Lieutenant Wild of the Waukesha County Sheriffs Department (cc: all counsel and via US Mail to Michael Hoskins and Warden )(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL S. HOSKINS,
Plaintiff,
v.

Case No. 18-C-413

OFFICER HOLZHUETER, et al.,
Defendants.

SCREENING ORDER

Plaintiff Michael Hoskins, who is currently serving a state prison sentence at Waupun
Correctional Institution and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging
that his civil rights were violated while he was in custody at the Waukesha County Jail. Plaintiff filed
an initial complain (ECF No. 1) and the Court issued a screening order (ECF No. 9), stating that the
defendant must identify the John Doe Correctional Officers in order to proceed on his claim for cruel
and unusual punishment against them. This matter comes before the court because Plaintiff filed an
Amended Complaint (ECF No. 35) in which he named the John Doe Correctional Officers.
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
Plaintiff alleges that the following occurred on January 25, 2018. First, that Correctional
Officer Holzhueter allegedly used unnecessary force while holding the Plaintiff down in his cell,
resulting in the plaintiff having a seizure and passing out. Second, that Officer Buboltz allegedly
used unnecessary force while stripping Plaintiff out of his clothes, including his underwear, resulting
in bleeding and bruising to the Plaintiff’s groin. Next, that Lieutenant Wild allegedly directed the
Correctional Officer to conduct the strip search, and later showed video of the strip search from the
cell camera to two Janitorial Staff members. Last, that Nurse Zerbst allegedly threw cold water on
Plaintiff while he was beginning to have a seizure inside his cell. The injuries Plaintiff suffered as a
result of the strip search and being held down were allegedly so severe that Plaintiff had to be taken
to the hospital for treatment where the injuries photographed. The court must treat these allegations
as true for purposes of screening the complaint.
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THE COURT’S ANALYSIS
“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.
Cty. 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)). To determine whether the use of force by a prison official violated
the Eight Amendment, the inquiry is “whether [the] force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian,
503 U.S. 1, 7 (1992). A strip-search occurring in a jail or prison can constitute cruel and unusual
punishment under the Eighth Amendment. King v. McCarty, 781 F.3d 889, 897 (7th Cir. 2015) (per
curiam). “A prisoner states a claim under the Eighth Amendment when he plausibly alleges that the
strip-search in question was motivated by a desire to harass or humiliate rather than by a legitimate
justification, such as the need for order and security in prisons.” Id. (first citing Calhoun v. DeTella,
319, F.3d 936, 939 (7th Cir. 2003); then citing Meriwether v. Faulkner, 821 F.2d 408, 418 (7th Cir.
1987)). “Even where prison authorities are able to identify a valid correctional justification for the
search, it may still violate the Eighth Amendment if ‘conducted in a harassing manner intended to
humiliate and cause psychological pain.’” Id. (quoting Mays v. Springborn, 575 F.3d 643, 649 (7th
Cir. 2009)).
Taking Plaintiff’s allegations as true, at this stage in the proceeding Plaintiff’s allegations are
sufficient to state a claim for cruel and unsual punishment against Officer Holzhueter, Officer
Buboltz, and Lieutenant Wild. Plaintiff alleges that Officer Holzhueter forcefully held Plaintiff down,
applying even more force when Plaintiff informed him that he was struggling to breathe. These
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alleged actions resulted in Plaintiff passing out. In addition, Plaintiff alleges not only that Officer
Buboltz conducted a strip-search that caused severe injuries, forcing Plaintiff to obtain treatment at
the hospital, but also that Buboltz’s supervisor, Lieutenant Wild, showed a video of the search to
other employees for the apparent purpose of entertaining them at Plaintiff’s expense. These
allegations suggest that the strip-search occurred for reasons that do not implicate a legitimate
penological interest.
The claim alleged against Nurse Zerbst, however, is not sufficient to state a claim. Plaintiff
does not claim that the nurse’s actions resulted in his seizure worsening, but merely that it could have
and that Nurse Zerbst would be aware of that possibility because she is familiar with Plaintiff’s
medical conditions. Without more factual support showing that her action was done unnecessarily
or to maliciously inflict pain, Plaintiff’s allegation against Nurse Zerbst are not sufficient to state a
claim.
IT IS THEREFORE ORDERED that the United States Marshal shall serve a copy of the
complaint and this order upon Officer Holzhueter, Officer Buboltz, and Lieutenant Wild of the
Waukesha County Sheriff’s Department pursuant to Federal Rule of Civil Procedure 4. Plaintiff is
advised that Congress requires the U.S. Marshals 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). Although Congress
requires the court to order service by the U.S. Marshals Service precisely because in forma pauperis
plaintiffs are indigent, it has not made any provision for these fees to be waived either by the court
or by the U.S. Marshals Service.

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IT IS FURTHER ORDERED that the Defendants shall file a responsive pleading to the
complaint.
IT IS FURTHER ORDERED that Defendant Nurse Zerbst be DISMISSED.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
The Plaintiff is reminded that, pursuant to the Prisoner E-Filing Program, the Plaintiff shall
submit all correspondence and case filings to institution staff, who will scan and e-mail documents
to the Court. The Prisoner E-Filing Program is in effect at Columbia Correctional Institution, Dodge
Correctional Institution, Green Bay Correctional Institution, Oshkosh Correctional Institution,
Waupun Correctional Institution, and Wisconsin Secure Program Facility. If the Plaintiff is no longer
incarcerated at a Prisoner E-Filing Program institution, he will be required to submit all
correspondence and legal material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
125 S. Jefferson Street, Suite 102
Green Bay, WI 54301
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
In addition, the parties must notify the Clerk of Court of any change of address. Failure to
do so could result in orders or other information not being timely delivered, thus affecting the legal
rights of the parties. Therefore, failure to provide your correct address could result in dismissal of
your case for failure to prosecute.

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Dated at Green Bay, Wisconsin this 27th day of August, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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