Hicks v. Facktor et al

Filing 8

ORDER signed by Judge Rudolph T. Randa on 3/31/2016. 2 Plaintiff's MOTION for Leave to Proceed in forma pauperis GRANTED. Defendants Michael Baenen and Cindy O'Donnell DISMISSED. Defendants to file responsive pleading within 60 days. Wis. Dept. of Corrections to collect $330.18 balance of filing fee from plaintiff's prison trust account. (cc: all counsel, via mail to Eric Hicks and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ERIC L. HICKS,
Plaintiff,
-vs-

Case No. 16-CV-284

CINDY O’DONNELL,
CHARLES FACKTOR,
MICHAEL BAENEN,
CAPTAIN LESATZ,
CO GLADES,
MICHAEL MOHR,
Defendants.

DECISION AND ORDER
On March 8, 2016, Eric L. Hicks, filed a pro se complaint under 42
U.S.C. § 1983 alleging that his constitutional rights were violated at the
Green Bay Correctional Institution. (ECF No. 1). The plaintiff petitioned
to proceed in forma pauperis (ECF No. 2), and the Court assessed an initial
partial filing fee of $19.82 (ECF No. 6). On March 18, 2016, the plaintiff
paid the initial filing fee in full. Therefore, his motion for leave to proceed
in forma pauperis will be granted.
The Prison Litigation Reform Act requires federal courts 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 may dismiss an action or portion thereof if the
claims alleged are “frivolous or malicious,”

fail to state a claim upon

which relief may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
To state a claim under the federal notice pleading system, plaintiffs
must provide a “short and plain statement of the claim showing that [he]
is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The complaint need not plead
specific facts, and need only provide “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)).
“Labels and conclusions” or a “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).
The factual content of the complaint must allow the court to “draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Indeed, allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Factual allegations, when
accepted as true, must state a claim that is “plausible on its face.” Iqbal,
556 U.S. at 678.
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Federal courts follow the two step analysis set forth in Twombly to
determine whether a complaint states a claim. Iqbal, 556 U.S. at 679.
First, the Court determines whether the plaintiff’s legal conclusions are
supported by factual allegations. Id.

Legal conclusions not support by

facts “are not entitled to the assumption of truth.” Id. Second, the Court
determines whether the well-pleaded factual allegations “plausibly give
rise to an entitlement to relief.” Id. Pro se allegations, “however inartfully
pleaded,” are given a liberal construction. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
In the context of a § 1983 claim, the 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 the 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). A suit seeking
monetary damages under § 1983 must further allege that the defendants
were personally involved in the constitutional deprivation. Matz v. Klotka,
769 F.3d 517, 527 (7th Cir. 2014).

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COMPLAINT ALLEGATIONS
On October 6, 2013, Captain Lesatz, Correctional Officer Glades,
and Correctional Officer Zentzius went to the plaintiff’s cell to transfer
him to the segregation unit. They placed the plaintiff in handcuffs and
ankle restraints. As the officers escorted the plaintiff down the hall, the
other inmates housed in his unit yelled “[s]tay up, bro,” “I’ll see you later,”
and “[w]rite me when you get a chance.” (ECF No. 1 at 3).
The plaintiff allegedly responded to the other inmates in a “nonthreatening manner,” and without provocation Glades yanked the
plaintiff’s right hand upward and slammed him into the wall causing tears
in his eyes and excruciating pain. Id. The plaintiff asserts that Glades
never gave him an order to stop talking or looking at the other inmates as
is typical before applying force under such circumstances.
The plaintiff informed Lesatz that he needed medical attention for
his shoulder. Lesatz replied “Negative. Put in a blue slip.” Id. Medical
staff examined the plaintiff’s shoulder a few days later and diagnosed an
injury to a nerve in his shoulder. The plaintiff asserts that he had a
shoulder injury from 2013 that was likely aggravated by the incident. On
October 8, 2013, the plaintiff filed a formal complaint through the inmate
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complaint review system.
Michael Mohr recommended dismissing the complaint. The plaintiff
alleges that Mohr intentionally ignored prison rules in an attempt to “help
cover up” the illegal use of force. (ECF No. 1 at 4). Complaint examiner
Michael Baenen accepted Mohr’s recommendation and dismissed the
complaint.
The plaintiff then filed an appeal of the decision. Charles Fracktor
recommended dismissing the appeal. The plaintiff alleges that Fracktor
also ignored prison rules in an attempt to “help cover up” the illegal use of
force. (ECF No. 1 at 4).

Deputy Secretary of the Department of

Corrections Cindy O’Donnell accepted Facktor’s recommendation and
dismissed the appeal.
For relief, the plaintiff seeks: (1) compensatory damages in the
amount of $200,000 from each defendant, (2) punitive damages in the
amout of $200,000 from each defendant, (3) an award of interest and costs
incurred by the plaintiff in initiating and prosecuting this action, and (4)
any other relief the court deems appropriate.
LEGAL ANALYSIS
The Eighth Amendment prohibits “unnecessary and wanton
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infliction of pain” on prisoners. Hudson v. McMillian, 503 U.S. 1, 5 (1992).
A prison official may not use force against an inmate “maliciously and
sadistically to cause harm.” Thomas v. Stalter, 20 F.3d 298 (7th Cir. 1994).
Instead, a prison official may only use force “in a good-faith effort to
maintain or restore discipline.” Id.

The factors used to determine

whether the use of force was wanton and unnecessary include: (1) the need
for an application of force, (2) the relationship between that need and the
amount of force used, (3) the threat reasonably perceived by the
responsible officials, and (4) any efforts made to temper the severity of a
forceful response. Whitley v. Albers, 475 U.S. 312, 321 (1986).
The Eighth Amendment also prohibits jail officials from acting with
deliberate indifference to a serious medical need. Farmer v. Brennan, 511
U.S. 825, 829, 834 (1994). Jail officials act with deliberate indifference
when they know of a substantial risk of serious harm and either act or fail
to act in disregard of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011).

More

specifically,

a

complaint

examiner

shows

deliberate

indifference when he refuses to do his job or “routinely sends grievances to
the shredder without reading them.” Burks v. Rasmisch, 555 F.3d 592,
595-96 (7th Cir. 2009). A complaint examiner is not liable under §1983 for
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merely dismissing an inmate’s complaint. See id.
The plaintiff may proceed with his Eighth Amendment claims
against Lesatz and Glades. He alleges that Lesatz twisted his arm, threw
him against the wall, and caused him severe pain for the sole purpose of
inflicting harm.

Glades allegedly stood by and did nothing.

Neither

officer ordered him to cease communicating with other inmates, and they
instead used unreasonable force out of malice. The plaintiff asserts that
there was no need for the use of force because he was already in handcuffs
and ankle restraints and had not provoked anyone.

The plaintiff has

stated a plausible Eighth Amendment violation, therefore, he may proceed
with his claims against Lesatz and Glades.
The plaintiff may also proceed with his claims against Mohr and
Facktor. The plaintiff asserts that both individuals attempted to “cover
up” their colleagues’ use of illegal force by ignoring prison rules and
essentially refusing to do their job. However, the plaintiff may not proceed
with his claims against complaint examiners Baenen and O’Donnell. The
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. Therefore,
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Baenen and O’Donnell will be dismissed from this action.
ORDER
IT IS THEREFORE ORDERED that the plaintiff's motion for
leave to proceed in forma pauperis (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that defendants Michael Baenen and
Cindy O’Donnell are DISMISSED from the action pursuant to 28 U.S.C.
§ 1915A(b)(1).
IT IS ALSO 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 state
defendants.
IT IS ALSO ORDERED that defendants shall file a responsive
pleading to the complaint within sixty days of receiving electronic notice of
this order.
IT IS ALSO ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff's
prison trust account the $330.18 balance of the filing fee by collecting
monthly payments from the plaintiff's prison trust account in an amount
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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 copies of this order be sent to the
warden of the Green Bay Correctional Institution.
IT IS ALSO 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:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
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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 31st day of March, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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