Smalls v. Tritt et al

Filing 4

SCREENING ORDER signed by Judge William C. Griesbach on 1/17/23. Defendants Rob Weinman, Ann York, Robert Rymarkewicz and Jenny Valencourt are dismissed form this action. Kyle Tritt, CO Hyster, CO Echie and Andrea Bleeker shall file a responsive pleading within 60 days of receiving electronic notice of this order. (cc: all counsel and mailed to pro se party with guide)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LA’MAR BRYAN SMALLS,
Plaintiff,
v.

Case No. 22-C-1530

KYLE TRITT, ROBERT RYMARKEWICZ,
CO HYSTER, CO ECHIE,
JENNY VALENCOURT, ROB WEINMAN,
ANDREA BLEEKER, and ANN YORK,
Defendants.
SCREENING ORDER
Plaintiff La’Mar Bryan Smalls, who is currently serving a state prison sentence at the
Waupun Correctional Institution and representing himself, filed a complaint under 42 U.S.C.
§1983, alleging that his civil rights were violated. Smalls paid the $402 civil case filing fee on
January 5, 2023. The Court will screen the complaint as required by 28 U.S.C. §1915A.
SCREENING OF THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity, and dismiss any complaint
or portion thereof if the prisoner has raised any 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 screening a complaint, the
Court must determine whether the complaint complies with the Federal Rules of Civil Procedure
and states at least plausible claims for which relief may be granted. To state a cognizable claim
under the federal notice pleading system, a plaintiff is required to provide a “short and plain statement

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of the claim showing that [he] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It must be at least sufficient
to provide notice to each defendant of what he or she is accused of doing, as well as when and where
the alleged actions or inactions occurred, and the nature and extent of any damage or injury the actions
or inactions caused.

“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
ALLEGATIONS OF THE COMPLAINT
According to Smalls, on July 4, 2022, he was sprayed with OC spray while in the restricted
housing unit to disrupt his suicide attempt. He explains that he was moved to a shower stall at
about 6:30 p.m. A little after midnight on July 5, 2022, an officer (who is not a Defendant)
allegedly found Smalls hanging from the shower door by his shirt. According to Smalls, the officer
sprayed him twice in the face with OC spray while telling him to unhang himself. Smalls states
that Officers Hyster, Echie, and Captain Tritt arrived at the shower area and ordered him to cuff
up behind his back. Smalls asserts that he complied with their orders. Dkt. No. 1 at 2-3.

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According to Smalls, Hyster and Echie escorted him out of the shower area with Tritt
following closely behind. As they began to descend the stairs, Smalls told them he could not see
or breathe. He states that he tried to sit down, at which time the officers dragged him down the
stairs to the main floor. Smalls asserts that he continued to tell officers that he was not resisting
but he could not see and was having trouble breathing. Smalls explains that he tried to kneel down,
at which point Tritt grabbed his head and yanked it backwards, causing Smalls great pain and
making it even harder for him to breathe. Smalls states that they continued to the strip cells, where
Tritt slammed his head into the door and stepped on his leg shackles. According to Smalls, he was
pinned to the door and ordered to kneel so Officer Jenny Valencourt could apply the door tether.
Smalls states that he told officers he could not kneel because Tritt was standing on his leg shackles,
but the officers continued to order him to kneel. Smalls asserts that when he tried to move his foot
to kneel, Tritt again snapped his head back, causing his neck to painfully pop and making it
difficult for him to breathe. Valencourt then applied the tether. Dkt. No. 1 at 3-4.
Smalls asserts that Nurse Ann York was in the restricted housing unit, but she did not
examine Smalls because Tritt ordered her to wait until after he was strip searched. Smalls said
that he continued to tell officers he was in pain and could not see or breathe, but officers refused
to let him see the nurse. Dkt. No. 1 at 5.
According to Smalls, he was seen by Nurse Andrea Bleeker on July 18, 2022, for his
complaints of neck pain. He asserts that she only took his vitals but “never properly evaluated”
him or his neck. Smalls asserts that, the following day, he wrote to Health Services Manager
Robert Weinman. Smalls explains that he had to wait to see a nurse practitioner who prescribed
acetaminophen for his pain but nothing else. Dkt. No. 1 at 5.

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THE COURT’S ANALYSIS
“[T]he unnecessary and wanton infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment.” Hudson v. McMillian, 503 U.S. 1, 5 (1992)
(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

The “core judicial inquiry” when

considering the amount of force used is “whether [the] force was applied in a good-faith effort to
maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. at 6 (citing
Whitley, 475 U.S. at 320–21). Smalls may proceed on an excessive force claim against Hyster,
Echie, and Tritt based on allegations that they used unnecessary force against him while they
moved him from the shower to the strip cells despite his compliance and despite him repeatedly
telling them he could not see or breathe. Smalls does not, however, state a claim against
Valencourt, who encountered Smalls after he was moved to the strip cell and who applied the
tether. Smalls does not allege that Valencourt used any force in applying the tether, and given how
quickly the events unfolded after her arrival, the Court cannot reasonably infer that she had a
reasonable opportunity to stop Hyster, Echie, and Tritt’s use of force. See Wilborn v. Ealey, 881
F.3d 998, 1007 (7th Cir. 2018).
Smalls may also proceed on a deliberate indifference claim against Tritt based on
allegations that he refused to let Smalls see the nurse despite his complaints of neck pain and his
complaints that he was having trouble seeing and breathing. See Estelle v. Gamble, 429 U.S. 97,
105 (1976) (explaining that prison guards who intentionally deny or delay access to medical care
for serious medical needs violate the Eighth Amendment). Smalls does not, however, state a claim
against Nurse York. Although Smalls alleges that she was in the restricted housing unit, nothing
in the complaint suggests that she knew Smalls was complaining about not being able to see or

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breathe. York cannot have been deliberately indifferent to a serious medical condition that she did
not know about. See, e.g., Whaley v. Erickson, 339 F. App’x 619, 622 (7th Cir. 2009).
Smalls also states a deliberate indifference claim against Nurse Bleeker who allegedly only
took Smalls’ vitals in response to his complaints of neck pain. Construed broadly, Smalls’
allegations that he was provided nothing in response to his complaints of significant neck pain are
sufficient to state a claim. See Pyles v. Fahim, 771 F.3d 403, 412 (7th Cir. 2014). Smalls does
not, however, state a deliberate indifference claim against Health Services Manager Weinman.
According to Smalls, after he wrote to Weinman to complain about the lack of response to his neck
pain, he was scheduled to see an advanced care provider who provided him with pain medication.
Smalls receiving additional attention following his letter to Weinman does not support an inference
that Weinman was deliberately indifferent to Smalls’ condition. Nor does Smalls state a claim
against the advanced care provider. Smalls suggests that she should have done more than just
prescribe pain medication, but nothing in Smalls’ complaint suggests that specialized care so soon
after the incident was necessary. While Smalls may disagree with the provider’s assessment and
treatment plan, his disagreement, without more, is insufficient to state an Eighth Amendment
claim. See id.
Finally, Smalls fails to state a claim against Robert Rymarkewicz, who allegedly
investigated Smalls’ complaints of excessive force. “Only persons who cause or participate in the
violation are responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). An officer who
investigates “a completed act of misconduct” does not violate the Constitution. Id.
IT IS THEREFORE ORDERED that Robert Rymarkewicz, Jenny Valencourt, Rob
Weinman, and Ann York are DISMISSED from this action because the complaint fails to state a
claim against them upon which relief can be granted.

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IT IS FURTHER ORDERED that pursuant to an informal service agreement between
the Wisconsin Department of Justice and this Court, copies of Smalls’ complaint and this order
are being electronically sent today to the Wisconsin Department of Justice for service on Kyle
Tritt, CO Hyster, CO Echie, and Andrea Bleeker.
IT IS FURTHER ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this Court, Kyle Tritt, CO Hyster, CO Echie, and Andrea
Bleeker shall file a responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
IT IS FURTHER ORDERED that the parties may not begin discovery until after the
Court enters a scheduling order setting deadlines for discovery and dispositive motions.
IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing
Program institutions must 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 mandatory for all
inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
and Oshkosh Correctional Institution. Plaintiffs who are inmates at all other prison facilities must
submit the original document for each filing to the Court to the following address:
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.

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Smalls 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 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.
Enclosed is a guide prepared by court staff to address common questions that arise in cases
filed by prisoners. Entitled “Answers to Prisoner Litigants’ Common Questions,” this guide
contains information that Smalls may find useful in prosecuting this case.
Dated at Green Bay, Wisconsin this 17th day of January, 2023.
s/ William C. Griesbach
William C. Griesbach
United States District Judge

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