Walker v. Ludvigson et al

Filing 9

ORDER signed by Judge Pamela Pepper on 9/11/2017 GRANTING 4 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Wisconsin DOC to collect $345.17 balance of filing fee from plaintiff's prison trust account i n accordance with 28 USC §1915(b)(2). Defendants Ludvigson, Dekeyser, Gerritson, Tritt, DeYoung, Moungey, Sabish, Williams and Bradley to file responsive pleading within 60 days. Parties may not begin discovery until the court enters scheduling order setting discovery and dispositive motions deadlines. (cc: all counsel, via mail to De'Von Walker and Warden at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DE’VON L. WALKER,
Plaintiff,
v.

Case No. 16-cv-1485-pp

PAUL LUDVIGSON, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 4) AND
SCREENING PLAINTIFF’S COMPLAINT
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
this lawsuit under 42 U.S.C. §983, dkt. no. 1, along with a motion for leave to
proceed without prepayment of the filing fee, dkt. no. 2. This order resolves
that motion and screens the plaintiff’s complaint.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain
conditions. One of those conditions is that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On November 30, 2016, the court ordered the plaintiff to pay an initial
partial filing fee of $4.83 on or before December 23, 2016. Dkt. No. 6. The
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plaintiff failed to pay the fee on time, and on January 6, 2017, the court
entered an order to show cause. Dkt. No. 7. The court received the initial
partial filing fee on January 9, 2017. The court will grant the plaintiff’s motion
for leave to proceed without prepayment of the filing fee, and will require the
plaintiff to pay the remainder of the filing fee over time as explained at the end
of this decision.
II.

Screening the Plaintiff’s Complaint
The law requires the court 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
if the plaintiff raises 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 claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To proceed 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 defendant was acting under color of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
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Village of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez
v. Toledo, 446 U.S. 635, 640 (1980). The court gives a pro se plaintiff’s
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.

The Plaintiff’s Allegations

The plaintiff’s claims relate to two documented suicide attempts by the
plaintiff and the way that staff members handled them, both before and after
the attempts. Dkt. No. 1 at 5.
1.

First Suicide Attempt

On November 5, 2014, at approximately 3:00 p.m., the plaintiff got the
attention of defendant Derek Dekeyser, the range officer on the plaintiff’s
segregation unit. Id. The plaintiff told Dekeyser that he was depressed and
suicidal and was having suicidal thoughts. Id. at 5-6. Dekeyser said he would
get the plaintiff some help. Id. at 6. Dekeyser returned to the plaintiff’s cell
about an hour later with defendant correctional officer Randy Gerritson,
defendant supervising officer Kyle Tritt, and defendant psychological associate
Paul Ludvigson. Id. at 6-7. The group spoke to the plaintiff for several minutes,
and the plaintiff told them all that he was suicidal and having suicidal
thoughts. Id. at 7. The group debated, and ultimately concurred in a decision
that the plaintiff could stay in his current cell and that he did not need further
treatment at that time. Id.

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At approximately 4:30 p.m., the plaintiff intentionally consumed over
sixty pills, including acetaminophen and ibuprofen. Id. The plaintiff continued
to take pills for more than an hour, and ultimately ingested more than eighty
pills. Id. Sometime after 6:00 p.m., the plaintiff became extremely ill; he was
vomiting profusely. Id. When Dekeyser made a wellness check, he noticed the
plaintiff’s condition, and asked the plaintiff what was wrong. Id. The plaintiff
told Dekeyser that he had ingested more than eighty pills. Id. The plaintiff also
told Dekeyser that he had swallowed a screw and multiple staples. Id. Dekeyser
radioed for assistance, and Gerritson and Tritt came to the plaintiff’s cell a
couple of minutes later. Id. They placed the plaintiff in restraints and took him
to the restrictive housing unit for a medical evaluation and eventual
psychological evaluation. Id.
When the plaintiff arrived at the restrictive housing unit, he was strip
searched, placed in a smock and placed in mechanical restraints. Id. He was
taken to the nurse’s station, with his wrists handcuffed behind his back and
shackles on both ankles, to be medically evaluated. Id. Defendant Nurse K.
DeYoung physically examined the plaintiff and took a blood sample. Id. at 7-8.
After the physical examination, defendant correctional officer Andrew
Moungey, correctional officer Weary and Tritt led the plaintiff to a holding cell;
DeYoung followed behind. Id. at 8. They attached the plaintiff’s handcuffs to
the door of his holding cell. Id. Moungey asked the plaintiff to kneel so he could
remove the plaintiff’s ankle restraints. Id. The plaintiff attempted to kneel, but
he could not without injuring himself because the strap attaching the
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handcuffs to the cell door was too short. Id. The plaintiff asked Moungey for
help getting to his knees because he could not do it himself. Id.
Moungey forcefully pushed the plaintiff with his full weight and held the
plaintiff aggressively against the holding cell door with his full weight on the
plaintiff. Id. Moungey also forcefully and painfully twisted and jerked the
plaintiff’s left hand and wrist into a painful and unnatural position. Id. This
injured the plaintiff’s left wrist and caused the plaintiff to hyperventilate. Id.
Weary (who is not named a defendant) and DeYoung were present when
Moungey used force; Tritt had just started to leave. Id. Tritt immediately
returned, and witnessed the whole incident. Id. DeYoung immediately treated
the plaintiff for his hyperventilation, but not for his wrist pain. Id.
At approximately 7:10 p.m., the plaintiff was placed into a psychological
observation room, even though DeYoung knew that the plaintiff had ingested a
number of pills, a screw and several staples. Id. A second blood draw at
approximately 10:00 p.m. revealed an abnormally high level of acetaminophen.
Id. Even with this information, DeYoung refused to send the plaintiff to an
outside hospital for treatment. Id. at 9. Instead, she offered the plaintiff
antacid. Id.
Between 9:30 p.m. and 10:30 p.m., the plaintiff pressed the medical
emergency intercom button Id. He told a John Doe correctional officer that he
needed further medical assistance, but John Doe 1 told the plaintiff that he
already had been seen by the nurse and that he was “fine.” Id.

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During the overnight hours, the plaintiff used the medical emergency
intercom button to ask a Jane Doe correctional officer for medical assistance
several times; he even pled with her. Id. John Doe 2, another correctional
officer working third shift, also refused to provide medical assistance. Id. These
defendants allowed the plaintiff to “suffer in pain so unbearable that the
plaintiff on at least two times during the night lost consciousness.” Id. Even
after waking up covered in his own urine and vomit, the plaintiff found himself
too weak and in too much pain to move out of his own filth or make any
attempt to clean it up. Id.
In the early morning hours of November 6, 2014, John Doe 3, a
supervising officer, looked in on the plaintiff as part of a wellness check. Id.
The plaintiff asked John Doe 3 for medical assistance, but none was given. Id.
The plaintiff finally was sent to an outside hospital at approximately 6:00
a.m. on November 6, 2014—twelve to thirteen hours after his original overdose.
Id. Staff in the emergency room at Waupun Memorial Hospital admitted the
plaintiff, and he spent three days in the intensive care unit at the hospital. Id.
at 10.
2.

Second Suicide Attempt

While the plaintiff was at the hospital, a defendant John Doe 4 was sent
to the plaintiff’s segregation cell to remove the rest of the plaintiff’s
medications, but he did not do so. Id.
When the plaintiff returned to the prison, he met with Ludvigson. Id. The
plaintiff told Ludvigson that he still had suicidal thoughts, but that he had no
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intention and did not believe he would act on them. Id. The plaintiff was
released from psychological evaluation and returned to his cell in segregation
at approximately 12:30 p.m. on November 10, 2014. Id.
That afternoon, the plaintiff told defendant correctional officer Jon
Williams at least twice that he was against feeling suicidal. Id. The plaintiff
received no medical or psychological attention after these statements. Id. At
approximately 7:00 p.m., the plaintiff ingested the sixty prescription pills that
remained in his segregation cell. Id. He then told Williams that he had taken
the remaining sixty pills, and Williams radioed for a supervisor. Id. at 10-11.
Defendant correctional officer Corey Bradley and defendant Tritt, along
with Jeremiah Larsen and McQuown (not named as defendants), reported to
the plaintiff’s cell. Id. at 11. The plaintiff discussed the situation with the
officers; he then was restrained and escorted to the Health Services Unit (HSU)
by Larsen, Williams and McQuown. Id. Nurse clinician Donna Larson (not
named as a defendant) treated the plaintiff briefly; he then was immediately
transported back to the hospital, where he spent another three days in the
intensive care unit. Id.
Williams wrote a conduct report for the plaintiff for misuse of medication,
stemming from the plaintiff’s second suicide attempt. Id. The plaintiff had a
due process hearing before defendant Corey Sabish, and the plaintiff admitted
that he had attempted to commit suicide and explained his psychological state
at the time. Id. Sabish found the plaintiff guilty of misuse of medication even
though the conduct report stemmed directly from the plaintiff’s suicide
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attempt. Id. According to the plaintiff, Williams and Sabish were deliberately
indifferent to the plaintiff’s mental state and caused him “supreme emotional
as well as mental distress” when they wrote the conduct report and found him
guilty. Id.
B.

Analysis

“A §1983 claim based upon a violation of the Eighth Amendment has
both an objective and a subjective element: (1) the harm that befell the prisoner
must be objectively, sufficiently serious and a substantial risk to his or her
health or safety, and (2) the individual defendants were deliberately indifferent
to the substantial risk to the prisoner’s health and safety.” Collins v. Seeman,
462 F.3d 757, 760 (7th Cir. 2006) (citing Matos ex rel. Matos v. O’Sullivan, 335
F.3d 553, 556 (7th Cir. 2003). “Where the harm at issue is suicide or attempted
suicide, the second, subjective component of an Eighth Amendment claim
requires a dual showing that the defendant: (1) subjectively knew the prisoner
was at substantial risk of committing suicide and (2) intentionally disregarded
that risk.” Id.
The Eighth Amendment also prohibits deliberate indifference to a
prisoner’s serious medical needs, as well as the use of excessive force. “To state
an Eighth Amendment medical claim based on deficient medical care, a
plaintiff must allege an objectively serious medical condition and an official’s
deliberate indifference to that condition.” Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015). “Whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments Clause, the
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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.”
Gomez v. Randle, 680 F.3d 859, 864 (7th Cir. 2012) (quoting Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992)).
The plaintiff’s complaint states Eighth Amendment claims against each
of the named defendants, both those identified and those named as Jane Doe
or John Does. After the named defendants are served and have filed answers to
the plaintiff’s complaint, and after the court enters a scheduling order, the
plaintiff may use discovery (interrogatories and requests for production of
documents) to identify those defendants currently named as Jane Doe and
John Does 1-4.
III.

Conclusion

The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 4.
The court ORDERS that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff’s prisoner trust
account the $345.17 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 Court each time the amount in the
account exceeds $10 in accordance with 28 U.S.C. §1915(b)(2). Please identify
the payments by the case name and number.

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The court will send a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS that, under 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 to the Wisconsin
Department of Justice for service on the following state defendants: Paul
Ludvigson, Derek Dekeyser, Randall Gerritson, Kyle Tritt, K. DeYoung, Andrew
Moungey, Corey Sabish, Jon Williams and Corey Bradley.
The court also ORDERS that, under 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
(60) days of receiving electronic notice of this order.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
Under 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.1 If the plaintiff is no longer incarcerated at a Prisoner
E-Filing institution, he must submit all correspondence and legal material to:

The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
1

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Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Court House
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
The court advises the plaintiff that failure to file pleadings or other
documents by the dates the court sets may result in the dismissal of his case
for failure to prosecute. 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, which could affect the legal rights of the parties.
Dated at Milwaukee, Wisconsin this 11th day of September, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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