Mazariegos v. Paquin et al

Filing 4

ORDER signed by Judge Rudolph T. Randa on 5/23/2013. Plaintiff may proceed on an 8th Amendment failure to protect claim; Defendants shall file response to complaint within 60 days of receiving electronic notice of this Order. (cc: all counsel, via US mail to Luis Mazariegos and Brian Foster at Kettle Moraine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LUIS FERNANDO MAZARIEGOS,
Plaintiff,
-vs-

Case No.

13-CV-397

JOHN PAQUIN, J. ALDANA,
DR. APPLE, M. HOWARD,
GARY HAMBLIN, CAPTAIN GEEGEAR,
LT. MIKLE, and NANCY PADGETT,
Defendants.

SCREENING ORDER

The plaintiff, a Wisconsin state prisoner, filed a pro se civil rights complaint
under 42 U.S.C. § 1983, alleging that his civil rights were violated. He has paid the full
filing fee.
Regardless of the plaintiff’s fee status, 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 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
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

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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
U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
The plaintiff was incarcerated at Racine Correctional Institution at all times
relevant. He alleges that defendants Captain Geegear and Lieutenant Mikle forced him into
helping them obtain information about a gang within the prison. Gang members found out
about the plaintiff’s assistance and have been targeting the plaintiff ever since. The gang
members have beaten the plaintiff several times resulting in broken bones and stitches.

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Inmates witnessed the beatings and submitted affdidavits to institution staff. The plaintiff
also contacted staff explaining that he needed protection but nothing was done.
The plaintiff claims that the defendants were deliberately indifferent to his
safety because they aware of his situation but did nothing. He seeks injunctive relief and
monetary damages.
The court finds that the plaintiff may proceed on an Eighth Amendment failure
to protect claim. See Smith v. Sangamon Cnty. Sheriff’s Dep’t, No. 11-1979, 2013 WL
1688900, at *3-4 (7th Cir. April 19, 2013).
IT IS THEREFORE ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court, copies of the
plaintiff’s complaint and this order are being electronically sent today to the Wisconsin
Department of Justice for service on the state defendants.
IT IS ALSO ORDERED that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, the defendants shall file a
responsive pleading to the complaint within sixty days of receiving electronic notice of this
order.
IT IS ALSO ORDERED that a copy of this order be sent to the warden of the
institution where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:

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Honorable Rudolph T. Randa
c/o 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
of Civil Procedure 5(a) to send a copy of every paper or document 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.

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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 23rd day of May, 2013.
SO ORDERED,

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

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