Earl v. Foster et al

Filing 7

ORDER signed by Judge Rudolph T. Randa on 5/7/2015. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Plaintiff's request for injunctive relief DENIED. Defendants Cathy Francois, Sgt. Pagel, William Pollard, Lt. Faltysk i and Brian Foster DISMISSED from this action. Wis. Dept. of Corrections to collect $335.79 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Warden and Daryise Earl at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

DARYISE L. EARL,
Plaintiff,
-vs-

Case No. 2:15-cv-282

BRIAN FOSTER,
WILLIAM POLLARD,
DAVE BROOKS,
CATHY FRANCOIS,
CARL RIEK,
LT. HELMEID, SGT. PAGEL,
LT. FALTYSKI, and
JOHN or JANE DOES 1-10,
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. This matter comes before
the Court on the plaintiff’s motion for leave to proceed in forma pauperis and for screening
of the plaintiff’s complaint.
The plaintiff has been assessed and has paid an initial partial filing fee of
$14.21. The Court will grant the plaintiff’s motion for leave to proceed in forma pauperis.
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, a 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 a 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 a 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

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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, courts 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). Courts are obliged to give a 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 is currently incarcerated at Green Bay Correctional Institution.
He is suing Brian Foster, William Pollard, Dave Brooks, Cathy Francois, Carl Riek, Lt.
Helmeid, Sgt. Pagel, Lt. Faltyski, and various John/Jane Does, all employees at the Green
Bay Correctional Institution.
The plaintiff alleges he has suffered multiple slip-and-fall injuries since 2008
as a result of having to wear poorly treaded boots while working in the kitchen. The most
recent injury, on September 25, 2014, resulted in a torn ligament in his knee, swelling, and
pain. The plaintiff alleges he was initially prescribed extra pillows to elevate his knee as well

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as four ice packs throughout the day. However, he was refused extra pillows and received
only two ice packs per day.
While the plaintiff was initially given work restrictions that allowed him to be
paid while remaining out of work, the plaintiff claims these restrictions were allowed to lapse
in retaliation for his complaints questioning the medical staff’s qualifications to assess his
injury. The plaintiff was ordered to return to work on October 14, 2014, and, after a
confrontation with his supervisor, was permitted to take a sick day after working for three
hours. The plaintiff alleges he was able to see a therapist later that afternoon. The therapist
reaffirmed his previous conclusion that the plaintiff had a torn ligament. After conferring
with the therapist, a doctor placed the plaintiff on work restriction for six weeks.
On October 22, 2014, the plaintiff received a form stating, “Due to operational
needs, we will be removing inmate Earl from the kitchen payroll. He would be eligible to
work in the kitchen once he is able to come back.” (Compl. ¶ 27, Docket # 1.) The plaintiff
states that he immediately complained about being “fired” because he was unable to work
due to an injury. In response, defendant Faltyski responded, “Due to institution needs you
were removed because your position needed to still be filled with someone. Once you are
cleared you will have to [sic] chance to work again. You were not fired.” (Id., at ¶ 28.)
The plaintiff purports to state retaliation claims against defendant Brooks for
“firing” the plaintiff from his work position and against defendant Doe(s) for allowing the
plaintiff’s work restrictions to lapse. The plaintiff also attempts to state a class-of-one

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discrimination claim based on his allegations that he was “fired” despite other injured
inmates being allowed to keep their work positions. Finally, the plaintiff asserts various
Eighth Amendment violations in connection with various defendants exposing inmate
kitchen workers to dangerous and harsh work conditions, failing to conform to the plaintiff’s
prescribed medical treatment, and requiring the plaintiff to work despite knowing of his
ongoing injury.
The plaintiff seeks injunctive relief, compensatory damages in the amount of
$30,000, and punitive damages in the amount of $300,000.
RETALIATION
To establish a claim of retaliation, the plaintiff must show that he engaged in
a protected activity, he suffered a deprivation likely to prevent future protected activity, and
there was a causal connection between the two. See Watkins v. Kasper, 599 F.3d 791, 794
(7th Cir. 2010).
The plaintiff first seeks to state a claim of retaliation against defendant Brooks
because defendant Brooks “fired” him after the plaintiff complained about the issuance of
“ragged” boots and the allegedly improper orders that the plaintiff return to work.
The plaintiff’s own allegations contradict his contention that he was “fired.”
Specifically, the plaintiff indicates that defendant Faltyski informed him that he was “not
fired” and that once the plaintiff was cleared, he would “have the chance to work again.”
(Compl. ¶ 28, Docket #1.) The plaintiff has not plead facts demonstrating defendant’s

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Faltyski’s statements were false. For example, the plaintiff has not alleged that, once he was
cleared to work, defendant Brooks or any other defendant refused to place him back in his
position. Failure to adequately plead he was “fired” undermines the plaintiff’s contention that
he suffered a deprivation.
However, although not specified in connection with this particular claim, the
plaintiff has alleged elsewhere that, contrary to the institution’s practice with regard to injured
workers, he was removed from payroll and his position was temporarily filled rather than
compensating the plaintiff and keeping the position open while the plaintiff recovered from
his injury. The plaintiff also alleges that defendant Brooks said that if the plaintiff had “sat
in his cell with his big mouth closed instead of writing complaints, he probably would have
kept his job.” (Id. ¶ 25.) Accordingly, the plaintiff may proceed with a retaliation claim
against defendant Brooks based on the plaintiff’s allegations that, had he not complained, his
position would have remained open and the plaintiff would have continued to be compensated
while recovering from his injury.
The plaintiff may also proceed with a retaliation claim against defendant nurse
practitioner Doe. The plaintiff alleges that defendant nurse practitioner Doe allowed his work
release to lapse and lied about his injury when asked about the expired release in retaliation
for his complaints questioning the medical staff’s abilities. The plaintiff alleges that, as a
result of these actions, he was required to go to work despite having an obvious injury that
continued to cause him significant pain.

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CLASS OF ONE
“The Equal Protection Clause of the Fourteenth Amendment prohibits state
action that discriminates on the basis of membership in a protected class or irrationally targets
an individual for discriminatory treatment as a so-called “class of one.” Reget v. City of La
Crosse, Wis., 595 F.3d 691, 695 (7th Cir. 2010) (internal citations omitted). The plaintiff
purports to bring a class-of-one discrimination claim. The question of a class-of-one claim
is whether the plaintiff was “singled out arbitrarily, without rational basis, for unfair
treatment.” Avila v. Pappas, 591 F.3d 552, 554 (7th Cir. 2010). The actions complained of
must have been undertaken for reasons that are wholly unrelated to any legitimate state
objective. See Esmail v. Macrane, 33 F.3d 176, 180 (7th Cir. 1995).
The plaintiff alleges that, unlike others similarly situated to him, he was
terminated from his work position and/or he was removed from payroll and not compensated
while recovering from an injury. The plaintiff’s own allegations regarding defendants’ stated
basis for their decision undermines the plaintiff’s class-of-one claim. According to the
plaintiff, defendant Faltyski explained that operational and institution needs required that the
kitchen position be filled while the plaintiff recovered from his injury. The need for a fully
staffed kitchen provides a rational basis for temporarily filling the plaintiff’s position, and the
plaintiff has not opposed this stated basis. Given that defendants’ actions in temporarily
filling the kitchen position cannot be said to be “wholly unrelated to any legitimate state
objective,” the plaintiff’s class-of-one claim must be dismissed.

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DELIBERATE INDIFFERENCE
In order to state a claim under the Eighth Amendment for deliberate
indifference to a hazardous condition of confinement, a plaintiff is required to allege that
defendants deliberately ignored a prison condition that presented an objectively, sufficiently
serious risk of harm. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014). The issuance of
“worn out boots to kitchen workers who work in extremely slippery areas” is not a
sufficiently dangerous condition. See Watkins v. Lancor, 558 Fed.Appx. 662, 665 (7th Cir.
2014) (holding that neither wet floors nor failure to provide protective overshoes for the wet
floor support a claim of deliberate indifference). As such, the plaintiff may not proceed with
this claim.
A plaintiff who seeks to state a claim based on deficient medical care must
demonstrate two elements: “1) an objectively serious medical condition; and 2) an official’s
deliberate indifference to that condition.”

Arnett v. Webster, 658 F.3d 742, 750 (7th Cir.

2011) (citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006)).
The plaintiff has satisfied this standard, and he may proceed with his claim that
defendant Helmeid was deliberately indifferent to the plaintiff’s serious medical condition
when defendant Helmeid ignored that the plaintiff was being “denied the required medical
course of treatment.” (Compl. ¶ 61, Docket #1.) The plaintiff may also proceed on his claims
that defendants Doe(s) and Riek were deliberately indifferent to the plaintiff’s serious medical

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condition when they allowed his work release to lapse, ordered him to return to work despite
an obvious ongoing injury, and ignored his subsequent complaints about his injury.
DISMISSED DEFENDANTS
The plaintiff has not alleged any personal involvement of defendants Foster or
Pollard, so the plaintiff has not stated claims against these defendants, and they will be
dismissed. See Burks v. Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009) (holding it is
acceptable to relegate to the prison’s medical staff the provision of good medical care and that
not everyone who knows about a prisoner’s problems must pay damages).
In addition, given that the plaintiff may not proceed with his class-of-one
discrimination or deliberate indifference to a hazardous condition of confinement claims,
defendants Francois, Pagel, and Faltyski will be dismissed, as these were the only claims
alleged against these defendants.
The plaintiff will need to use discovery to identify the Doe defendants involved
with the surviving claims.
INJUNCTIVE RELIEF
The plaintiff appears to seek injunctive relief on behalf of the kitchen staff, as
he requests that this Court, “Issue an injunction to discontinue the policy/custom of G.B.C.I.’s
distribution of work out boots to its inmate kitchen workers.” (Compl. ¶ 69, Docket #1.) The
plaintiff lacks standing to pursue such relief. The plaintiff may assert his own legal rights, but

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not the legal rights of other inmates. Shimer v. Washington, 100 F.3d 506, 508 (7th Cir.
1996); see, Arizonans for Official English v. Arizona, 117 S.Ct. 1055 (1997).
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 request for injunctive relief
is denied.
IT IS FURTHER ORDERED that defendants Foster, Pollard, Francois, Pagel,
and Faltyski are dismissed.
IT IS FURTHER 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 following state defendants: Brooks, Riek, and Helmeid.
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 FURTHER ORDERED that the Secretary of the Wisconsin Department
of Corrections or his designee shall collect from the plaintiff’s prison trust account the
$335.79 balance of the filing fee by collecting monthly payments from the plaintiff’s prison
trust account in an amount equal to 20% of the preceding month’s income credited to the

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prisoner’s trust account and forwarding payments to the clerk of the 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 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:
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. As each filing will be electronically scanned and
entered on the docket upon receipt by the clerk, the plaintiff need not mail copies to
defendants. All defendants will be served electronically through the Court’s electronic case
filing system. The plaintiff should also retain a personal copy of each document filed with
the Court.
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.
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Dated at Milwaukee, Wisconsin, this 7th day of May, 2015.
SO ORDERED,

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

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