Tyszka v. Baumann

Filing 13

ORDER signed by Judge Rudolph T. Randa on 1/16/2014 GRANTING 2 MOTION for Leave to Proceed in forma pauperis; DENYING as moot 9 MOTION for Extension of Time. Defendant to file responsive pleading to complaint within 60 days of electronic notice of this Order. Plaintiff to pay $313.63 balance of finding fee. (cc: all counsel, via US mail to Anthony Tyszka)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ANTHONY P. TYSZKA,
Plaintiff,

-vs-

Case No.

13-CV-334

LT. R. BAUMANN,
Defendant.

DECISION AND ORDER

The plaintiff, Anthony P. Tyszka, filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated while he was incarcerated at Green Bay
Correctional Institution (GBCI). This matter comes before the Court on the plaintiff's motion
for leave to proceed in forma pauperis, his motion for extension of time, and for screening
of the plaintiff’s complaint.
I. MOTIONS
The plaintiff is required to pay the statutory filing fee of $350.00 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. The plaintiff 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

an initial partial filing fee of $10.37 and has paid a total of $36.37 toward the filing fee in
this case. The Court will grant the plaintiff’s motion for leave to proceed in forma pauperis.
On April 10, 2013, the plaintiff filed a motion for extension of time and asked
for an extension of four to five days to submit the remainder of the legal documentation of
his claim and the remainder of the full filing fee. At that time, no additional documentation
or money was due. Accordingly, the Court will deny this motion as moot.
II. SCREENING
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).
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 Atlantic 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

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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, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555 (citation 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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North 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

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U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
On March 21, 2012, the plaintiff was awakened by C.O. Graves and C.O.
Steudel at 11:30 p.m. The plaintiff was told that Lt. R. Baumann was demanding a strip
search for no apparent reason. The plaintiff got dressed and was escorted to a strip search
cell, where he removed his clothes and gave them to C.O. Steudel through the door’s slot.
C.O. Graves was within 5-10 feet of him the entire time. The plaintiff continued to comply
with C.O. Steudel’s orders during the strip search procedure. After the plaintiff had turned
around and “spread ‘em,” he looked out the cell window to his right and saw Lt. Baumann
standing there, leaning against the window frame. (Complaint at 2). While C.O. Steudel was
still frisking the plaintiff, Lt. Baumann cut between Steudel and the front wall of the cell,
forcing Steudel to step back to allow room for him to pass. Lt. Baumann came to the door
where the plaintiff was chained naked and leaned on the door jamb. The plaintiff asked,
“What the hell’s this all about?” Id. Lt. Baumann responded, “So, tell me why you like
segregation so much.” Id. Lt. Baumann then told plaintiff he was imposing a “creative” and
severe disposition or punishment of a loss of books and ear buds for 90 days. Id. at 3. C.O.
Steudel gave the plaintiff his clothes back through the door slot. As the plaintiff was putting
on his pants, he looked out of the cell door’s window and saw Lt. Baumann laughing
approximately ten feet away. Upon seeing this, the plaintiff yelled, “Asshole!” Id. There
was no conversation to account for Lt. Baumann’s laughing, and the plaintiff never made any
sexual comments to Lt. Baumann or anyone else. C.O. Graves and C.O. Steudel escorted the

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plaintiff back to his cell, where another officer was finishing a search of the plaintiff’s cell.
That officer confiscated the plaintiff’s books and earbuds.
On March 23, 2012, the plaintiff tried to appeal the disciplinary disposition.
Lt. Baumann’s shift did not pick up the form so a correctional officer took it during the
morning medication rounds. The plaintiff heard no response for nearly two weeks when the
average response time is three to five business days. On April 23, 2012, the plaintiff
submitted another appeal form and a message to Assistant Deputy Warden Sarah Cooper.
Cooper replied that the original appeal “was never received by this office,” and the plaintiff
received notice that his second appeal form was “Denied, untimely.” Id. at 4-5.
The plaintiff also presents several issues regarding inmate complaints, the
opening and reading of incoming and outgoing legal mail, and the plaintiff’s demotions in
class that affected his privileges and his return to general population. The plaintiff asserts
that Lt. Baumann was involved in his demotions and that the demotions were in retaliation
for the plaintiff’s appeals and inmate complaints regarding the strip search incident.
Claims of sexual harassment or abuse by correctional officers may be the basis
for an Eighth Amendment claim. Bohen v. City of East Chicago, Ind., 799 F.2d 1180, 1187
(7th Cir. 1986) (§ 1983 sexual harassment claims sufficiently strong to survive challenge on
appeal); see also Johnson v. Phelan, 69 F.3d 144, 147 (7th Cir. 1995) (“a prisoner has a
remedy for deliberate harassment, on account of sex, by guards of either sex”). At this stage,
the plaintiff has stated an Eighth Amendment sexual harassment claim against Lt. Baumann.

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Additionally, a prisoner’s retaliation claim is subject to a liberal notice pleading
standard; to comply with 1915A, as with Fed. R. Civ. P. 12(b)(6), the complaint need specify
only the bare minimum facts necessary to notify the defendants and the court of the nature
of the claims. See Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002). The “bare minimum”
in a retaliation claim are the facts that would apprise the defendants of what the plaintiff did
to provoke the alleged retaliation and what they did in response. See id.; Walker v.
Thompson, 288 F.3d 1005, 1012 (7th Cir. 2002) (“a plaintiff alleging retaliation must
reference, at a minimum, the suit or grievance spawning the retaliation and the acts
constituting the retaliatory conduct”). The plaintiff also has stated a retaliation claim against
Lt. Baumann.
With regard to some of the other potential claims referred to in the complaint,
the plaintiff seems to be bringing them against individuals who are not named as defendants.
Those individuals were not named as defendants by the plaintiff in the caption, and it
unacceptable for a court to add litigants on its own motion. Myles v. United States, 416 F.3d
551 (7th Cir. 2005)
III. ORDER
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket #2) is granted.
IT IS FURTHER ORDERED that the plaintiff’s motion for extension of time
(Docket #9) is denied as moot.

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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 plaintiff’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice for
service on Lt. R. Baumann.
IT IS ALSO ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, the defendant shall file a
responsive pleading to the complaint within sixty days of receiving electronic notice of this
order.
IT IS FURTHER ORDERED that the plaintiff shall pay the $313.63
remainder of the filing fee. Payments shall be clearly identified by the case name and
number assigned to this action and mailed to the Clerk of Court.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable Rudolph T. Randa
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the matter.
The plaintiff is notified that from now on, he is required under Federal Rule

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of Civil Procedure 5(a) to send a copy of every paper or document filed with the court to the
opposing party or, if the opposing party is represented by counsel, to counsel for that party.
Fed. R. Civ. P. 5(b). The plaintiff should also retain a personal copy of each document. 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 the opposing party or that
party’s attorney, if the party is represented by an attorney.
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 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.
Dated at Milwaukee, Wisconsin, this 16th day of January, 2014.
SO ORDERED:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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