Hicks v. Facktor et al

Filing 26

ORDER signed by Judge Pamela Pepper on 9/27/2016 DENYING 25 Plaintiff's Motion to Reinstate Defendants O'Donnell and Baenen. (cc: all counsel; by US Mail to Plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ERIC L. HICKS,
Plaintiff,
v.

Case No. 16-cv-284-pp

CHARLES FACKTOR, et al.,
Defendants.
______________________________________________________________________________
ORDER DENYING PLAINTIFF’S MOTION TO REINSTATE DEFENDANTS
O’DONNELL AND BAENEN (DKT. NO. 25)
______________________________________________________________________________
Plaintiff Eric L. Hicks, a Wisconsin state prisoner who is representing
himself, filed a civil rights action under 42 U.S.C. §1983, alleging that the
defendants at the Green Bay Correctional Institution violated his Eighth
Amendment rights. Dkt. No. 1. On March 31, 2016, Judge Rudolph T. Randa,
who was assigned to the case at the time, issued a screening order allowing the
plaintiff to proceed against all the defendants except Cindy O’Donnell, the
Secretary of the Department of Corrections, and Michael Baenen, one of the
complaint examiners. Dkt. No. 8. Specifically, the court wrote that “[t]he
plaintiff merely alleges that Baenen and O’Donnell ruled adversely on his
inmate complaint. An adverse ruling on an inmate complaint does not amount
to deliberate indifference absent other malicious acts.” Id. at 7. Therefore, the
court dismissed those two defendants from the case. Id. at 8. On August 3,
2016, the case was reassigned to Judge Pepper due to Judge Randa’s illness.

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The plaintiff now has filed a motion to reinstate O’Donnell and Baenen as
defendants in this case. Dkt. No. 25. The plaintiff explains in his motion that
Judge Randa’s conclusion was erroneous because both Baenen and O’Donnell
satisfied the “personal involvement” requirement of §1983 when they denied his
inmate grievance and appeal. Id. at 2. The plaintiff cites several cases in
support of this proposition. See Whitehead v. Mahone, No. 10-1027, 2011 WL
3241352, at *8 (C.D. Ill. July 29, 2011) (“The Seventh Circuit has held that if a
supervisor denies an inmate's appeal or grievance, this denial is capable of
establishing ‘personal involvement’ for § 1983 purposes.”); Verser v. Elyea, 113
F.Supp.2d 1211, 1216 (N.D. Ill. 2000); Pride v. Peters, No. 94–2025, 1995 WL
746190, at *1 (7th Cir. Dec. 15, 1995). This court believes, however, that the
plaintiff misunderstood Judge Randa’s ruling.
The court did not dismiss O’Donnell and Baenen from the case based on
lack of “personally involvement.” See Dkt. No. 8 at 7-8. As the plaintiff points
out, these individuals reviewed the plaintiff’s complaint and dismissed it,
thereby satisfying the personal involvement requirement of §1983. See Black v.
Lane, 22 F.3d 1395, 1401 (7th Cir. 1994). What Judge Randa concluded was
that the plaintiff’s allegations regarding their personal involvement (ruling
adversely on the complaint and dismissing it) did not state a claim for
“deliberate indifference.” See Dkt. No. 8 at 7-8.
As discussed in Judge Randa’s prior decision and others, deliberate
indifference requires more than simply ruling adversely on an inmate
complaint. Burks v. Rasmisch, 555 F.3d 592, 595-96 (7th Cir. 2009). It
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requires other malicious acts, such as refusing to do one’s job or “routinely
send[ing] grievances to the shredder without reading them.” Id. Unlike the
plaintiff’s factual allegations against complaint examiners Charles Facktor and
Michael Mohr—both of whom allegedly “cover[ed] up” staff violations to prevent
their prison colleagues from “getting in trouble” (Dkt. No. 1 , ¶¶ 28 30)—the
plaintiff’s factual allegations against O’Donnell and Baenen are limited to their
dismissing his grievances. See id. As discussed above, an adverse ruling on an
inmate complaint alone is insufficient to state a claim for deliberate
indifference.
This court agrees with Judge Randa’s decision, and will deny the
plaintiff’s motion to reinstate the defendants.
The court ORDERS that the plaintiff’s motion to reinstate defendants
O’Donnell and Baenen (Dkt No. 25) is DENIED.
Dated in Milwaukee, Wisconsin this 27th day of September, 2016.

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