Miller v. Schwochert et al

Filing 11

ORDER signed by Judge Rudolph T. Randa on 5/18/2016. 10 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Defendants Phillips and Schwochert DISMISSED. Defendants Peachy and Kitzman to file responsive pleading within 60 days. Wis. Dept. of Corrections to collect $341.51 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Julian Miller and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JULIAN J. MILLER,
Plaintiff,
-vs-

Case No. 16-CV-204

JIM SCHWOCHERT,
LT. PEACHY,
CO KITZMAN,
R. PHILLIPS, Security Director, and
CO JOHN DOE,
Defendants.

DECISION AND ORDER
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 amended
complaint.
The plaintiff has been assessed and paid an initial partial filing fee of
$8.85. 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,
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 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,

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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)).
A.

Complaint Allegations
The plaintiff, Julian, Miller, is a state prisoner who is currently

incarcerated at Green Bay Correctional Institution. The defendants are all
employees of the Wisconsin Department of Corrections who worked at Dodge
Correctional Institution (Dodge) on February 20, 2010, when the plaintiff was
an inmate at Dodge house on the second floor.

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On February 20, 2010, defendants Kitzman, Doe, and Peachy came to
the plaintiff’s cell and had him place his hands through the trap in the cell
door. The plaintiff asked them to be easy on his wrist due to past breaks. As
defendants Kitzman and Doe escorted the plaintiff down the stairs, the
plaintiff asked CO Reyes why a conduct report had been written. Peachy told
the plaintiff to “shut up,” and Kitzman applied more pressure to the plaintiff’s
wrists, which caused the plaintiff to tense his wrists so they were not as
flexible. (ECF No. 9 at p. 2). Kitzman commented on the plaintiff tensing up,
and then Peachy grabbed the plaintiff’s throat and tilted his head back. The
plaintiff started choking because he had a Jolly Rancher candy in his mouth.
The plaintiff could not tell Peachy what was happening until after the candy
went down his throat.
The plaintiff began walking, but Peachy again grabbed the plaintiff’s
throat and tilted his head back and asked, “Are you going to go like a man or a
girl?”

(ECF No. 9 at p. 3).

The plaintiff replied that he would continue

walking, but Peachy continued to choke the plaintiff and hold his head back
all the way to Unit 20. The plaintiff had great difficulty breathing and almost
lost consciousness, which made him fear for his life.

Doe and Kitzman

followed behind, but never stopped the choke hold.
Kitzman placed the plaintiff in a holding cell and gave him an orange
jumpsuit. The plaintiff complained that his left wrist was hurting and asked

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to see a nurse. Kitzman left and then returned and told the plaintiff to give
back the orange jumpsuit because it was dirty. Kitzman left again and came
back with a control suit. The plaintiff was placed in the control room, where
he had trouble sleeping due to the rubber mat and the cold temperature.
The plaintiff filed a complaint, and defendant Phillips conceded that
excessive force was used. The plaintiff believes that at least one other inmate
before him complained about Peachy’s use of a choke hold.

The plaintiff

asserts that defendants Phillips and Schwochert did not take any corrective
actions (such as training or discipline) after either the plaintiff’s complaint or
the complaint from another inmate.
B.

Legal Analysis
“[W]henever prison officials stand accused of using excessive physical

force in violation of the Cruel and Unusual Punishments Clause, the core
judicial inquiry is … whether 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, 6-7 (1992). “Thus, a § 1983 plaintiff must
establish that prison officials acted wantonly; negligence or gross negligence is
not enough.”

Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012) (citing

Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir. 2005)).
At this stage, the Court will allow the plaintiff to proceed on Eighth
Amendment claims against defendants Peachy, Kitzman, and Doe regarding

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their use of force and/or failure to intervene to stop the use of force by others.
The plaintiff also may proceed on Eighth Amendment claims against Kitzman
and Peachy that they subjected him to the conditions of confinement in the
control room for no justifiable reason.
Once the complaint is served and the defendants have answered, the
plaintiff should use written discovery to learn the identity of CO John Doe and
then file a motion to substitute that name for defendant CO John Doe. If the
plaintiff has difficulty determining the identify of CO John Doe, he should ask
the court for assistance in conducting the necessary investigation. See Donald
v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir. 1996).
The Court now turns to the plaintiff’s claims against defendants
Phillips and Schwochert. First, the plaintiff does not state a claim against
defendant Phillips regarding his involvement in the plaintiff’s inmate
complaint. The plaintiff admits that Phillips conceded that excessive force
was used. In any event, “[r]uling against a prisoner on an administrative
complaint does not cause or contribute to the [constitutional] violation.”
George v. Smith, 507 F.3d 605, 609–10 (7th Cir.2007).
Second, the plaintiff suggests that defendants Schwochert and Phillips
knew about another inmate’s complaint about Peachy’s use of a choke hold
and failed to take action. He suggests that if Schwochert and Phillips had
investigated the earlier complaint or taken corrective action such as discipline

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or training, Peachy would not have used a choke hold on the plaintiff.
In the Eighth Amendment context, failure to train claims may only be
maintained against a municipality. Sanville v. McCaughtry, 266 F.3d 724,
740 (7th Cir. 2001). In this case, the plaintiff makes no official capacity claims
and does not seek injunctive relief. The Court thus considers the plaintiff’s
claims against Schwochert and Peachy as individuals.
“The doctrine of respondeat superior does not apply to § 1983 actions;
thus to be held individually liable, a defendant must be personally responsible
for the deprivation of the constitutional right.”

Id. (citations omitted).

Defendants may be personally responsible if they “directed the conduct
causing the constitutional violation, or if it occurred with his knowledge or
consent.” Id. A supervisor may be liable for deliberate indifference to the
misconduct of subordinates if the supervisor knew about the conduct and
facilitated it, approved it, condoned it, or turned a blind eye for fear of what
might be seen. Id.
In Sanville, the plaintiff accused the defendants of tolerating a number
of very specific transgressions.

Id.

Nonetheless, the Seventh Circuit

concluded that none of those allegations suggested that the wardens were
personally responsible for any deprivations or that the wardens had “turned a
blind eye” to any particular conduct. Id.
The plaintiff’s only allegation regarding prior conduct is his belief that

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an unnamed inmate had previously made a complaint about Peachy’s use of a
choke hold. This is not enough to state a claim that Schwochert or Phillips
were deliberately indifferent by not investigating the situation, disciplining
Peachy, or training Peachy and other guards regarding the use of choke holds.
The conclusory allegations lack personal involvement by the defendants and
do not rise to the level of deliberate indifference.

The Court will dismiss

defendants Schwochert and Phillips.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT the plaintiff’s motion for leave to proceed in
forma pauperis (ECF No. 10) is GRANTED.
IT IS FURTHER ORDERED that defendants Jim Schwochert and R.
Phillips are DISMISSED.
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 the following state
defendants: Lt. Peachy and CO Kitzman.
IT IS ALSO ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this court, the
defendants who are served shall file a responsive pleading to the complaint
within sixty days of receiving electronic notice of this order.

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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 $341.15 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 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, 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 Dodge Correctional Institution,
Green Bay Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility and, therefore, if the plaintiff is no longer
incarcerated at one of those institutions, he will be required to submit all
correspondence and legal material to:

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Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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 18th day of May, 2016.

BY THE COURT:

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

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