Bergeron-Davila v. Schmaling et al

Filing 21

ORDER signed by Judge J.P. Stadtmueller on 3/7/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING as moot 6 Plaintiff's Motion for Preliminary Injunction; DENYING as moot 9 Plainti ff's Motion for Extension of Time; DENYING without prejudice 8 , 13 Plaintiff's Motions to Appoint Counsel. U.S. Marshals Service to serve copy of complaint and this order on defendants; defendants to file responsive pleading to compla int. Wisconsin DOC to collect balance of filing fee from plaintiff's prison trust account per 28 U.S.C. § 1915(b)(2). See Order. (cc: all counsel, via mail to Raymond J. Bergeron-Davila and Warden at Columbia Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERONDAVILA,
Plaintiff,

Case No. 16-CV-1665-JPS

v.
CHRISTOPHER SCHMALING,
DOUGLAS WEARING, LT.
BRADLEY FRIEND, C.O. ZIMMER,
and JOHN DOES,

ORDER

Defendants.

The plaintiff, who is incarcerated at Columbia Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #17). This matter comes before the Court on the
plaintiff’s motion to proceed in forma pauperis. (Docket #2). The plaintiff has
been assessed and paid an initial partial filing fee of $1.08. 28 U.S.C. §
1915(b)(4).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an 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).

A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). The Court may, therefore, dismiss a claim as frivolous where
it is based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327; Gladney, 302 F.3d at
774. “Malicious,” although sometimes treated as a synonym for “frivolous,”
“is more usefully construed as intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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.

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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);
Christopher, 384 F.3d at 881.
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 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 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 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)).
The Court screens the plaintiff’s amended complaint filed on March
3, 2017. (Docket #17). The focus of the complaint is plaintiff’s suicide attempts
and the defendants’ indifference thereto while he was incarcerated in the
Racine County Jail (the “Jail”). The complaint is overlong and difficult to
parse; it is forty pages, single-spaced, and entirely handwritten.
Nevertheless, the Court gleans a number of overarching allegations. The first

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theme of the plaintiff’s complaint is that he believes certain cells and common
areas are improperly designed. Namely, he contends that certain cell doors
allow inmates to pass objects underneath them, giving the plaintiff access to
weapons with which to harm himself. Id. at 5-7. The second theme is directed
at the defendants’ allegedly inadequate search of the dayroom between each
inmate’s hour of recreation time. Id. at 7. This resulted in other inmates
leaving objects behind in the dayroom for plaintiff to obtain and use in selfharming episodes. Id. Finally, the plaintiff complains that non-suicidal
inmates were housed near him, and that those inmates would goad him into
suicidal acts. Id. at 4.
The specific examples the plaintiff presents are as follows. In the early
fall of 2015, while on suicide watch, the plaintiff obtained two pieces of
metal. Id. at 8. He did so by finding them in the dayroom during his
recreation time. Id. The correctional officers on duty did not search the
dayroom before letting the plaintiff in for recreation, which he alleges they
should have done. Id. He stabbed himself with the metal pieces. Id. He was
taken to a hospital for treatment. Id. at 9. The plaintiff maintains that the
defendants were all aware of his risk of suicide because of his repeated letters
to them, but they did not do enough to prevent this incident. Id. Finally, he
alleges that mental health treatment staff refused to treat his mental
disorders, leading to later suicide attempts. Id. at 10.
On November 20, 2015, the plaintiff alleges he was bullied by nonsuicidal inmates housed near him in the suicide watch unit. Id. at 12-13.
Because of their taunting, the plaintiff apparently cut himself. Id. Again, he
alleges that the defendants were on notice of the issue because he sent letters

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to them, but nothing was done to separate him from his tormentors. Id. The
plaintiff further alleges that the defendants held weekly team meetings
wherein they affirmed his housing assignment despite knowing its danger to
him. Id. at 15. He states that this incident caused him great pain though he
was not offered any medication to abate it. Id. at 15-16.
The final specific episode occurred the next day, November 21, 2015.
Id. at 17. It is unclear precisely how he obtained the weapon for this episode.
At one point, the plaintiff alleges that it was the same weapon he used the
previous day, which was inexplicably left in his possession. Id. at 19. Later,
he states that another prisoner slid a weapon under his cell door. Id. at 29. In
any event, he cut his arm, again causing pain and psychological distress. Id.
at 20. As to each of these incidents, the plaintiff alleges that safer cell
assignments were available but were not chosen. See, e.g., id. at 15-16, 21.
The plaintiff explains which of the various Doe defendants were
involved in each incident. As to the named defendants, only C.O. Zimmer
appears to have been directly involved in any of the incidents. Id. at 12, 17.
The plaintiff alleges that Christopher Schmaling (“Schmaling”), Douglas
Wearing (“Wearing”), and Lt. Bradley Friend (“Friend”) were among those
on notice of his suicide risk by his previous letters. Further, plaintiff alleges
that Schmaling, Racine County’s sheriff, is “responsible for misuse of his
jailspace.” Id. at 24. Wearing, an “administrative captain” for the Jail, “has the
say so authority to place plaintiff where in the jail and . . . used . . . unsafe
cells” causing his suicide attempts. Id. at 25. Wearing also approved the
recommendation of the Doe defendants regarding his placement in unsafe
cells. Id. Finally, Friend was “in charge of investigations surrounding all of

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plaintiff’s suicide attempts” and knew, through that work, that the plaintiff
presented a serious risk of suicide. Id. at 26-27.
The plaintiff’s allegations suffice at the screening stage to state a claim
for the defendants’ deliberate indifference to his serious medical need—here,
his risk of suicide—in violation of the Eighth Amendment. Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001). To state a claim of deliberate
indifference to a serious medical need, the plaintiff must show: (1) an
objectively serious medical condition; (2) that the defendants knew of the
condition and were deliberately indifferent in treating it; and (3) this
indifference caused the plaintiff some injury. Gayton v. McCoy, 593 F.3d 610,
620 (7th Cir. 2010). The deliberate indifference inquiry here, like that
applicable to conditions of confinement, has two components. “The official
must have subjective knowledge of the risk to the inmate’s health, and the
official also must disregard that risk.” Id. Even if an official is aware of the
risk to the inmate’s health, “he is free from liability if he ‘responded
reasonably to the risk, even if the harm ultimately was not averted.’” Id.
(quoting Farmer, 511 U.S. at 843). Negligence cannot support a claim of
deliberate indifference, nor is medical malpractice a constitutional violation.
Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v. Elyea, 631 F.3d 843, 857
(7th Cir. 2011).
Construing the plaintiff’s allegations liberally, the Court finds that he
should be permitted to proceed on this claim. See Estate of Novack ex rel.
Turbin v. County of Wood, 226 F.3d 525, 529 (7th Cir. 2000) (“In order to be
liable under the Eighth Amendment, a prison official must be cognizant of
the significant likelihood that an inmate may imminently seek to take his own

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life and must fail to take reasonable steps to prevent the inmate from
performing this act.”). He alleges that each defendant was aware of his
suicide risk and did not take action sufficient to abate it. It may be that some
of the defendants were not personally involved in the alleged constitutional
violations. As to those that were, they may have responded adequately to the
plaintiff’s threats of suicide and acts of self-harm, or it may be that the
plaintiff’s version of events is inaccurate. However, given the low bar applied
at the screening stage, the Court finds it appropriate to let this claim proceed.
The Court further finds that the plaintiff may proceed against
Schmaling in his official capacity on his overarching policy complaints. A suit
against Schmaling in his official capacity is akin to a suit against Racine
County itself. Grieveson v. Anderson, 538 F.3d 763, 771 (7th Cir. 2008). Local
government entities, such as municipalities and counties, cannot be held
vicariously liable for constitutional violations committed by their employees.
Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658, 690 (1978). Such
entities can, nevertheless, be liable under Section 1983 if “the unconstitutional
act complained of is caused by: (1) an official policy adopted and
promulgated by its officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well settled; or (3) an
official with final policy-making authority.” Thomas v. Cook County Sheriff’s
Dept., 604 F.3d 293, 303 (7th Cir. 2009) (citing Monell, 436 U.S. at 690). The
plaintiff’s allegations plausibly state that the Jail’s policies caused or at least
contributed to his injuries. As above, whether this is borne out by the relevant
evidence remains to be seen. The plaintiff may not proceed on an official

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capacity claim against any of the other defendants, as this would be
redundant.
In sum, the Court finds that the plaintiff may proceed on the following
claims:
Claim Number One: Deliberate indifference to the plaintiff’s serious
medical needs, in violation of the Eighth Amendment, against each of the
defendants; and
Claim Number Two: Implementation of policies or practices which
were the moving force behind the alleged constitutional violations against the
defendant Christopher Schmaling.
The Court will also address the plaintiff’s other pending motions. On
December 22, 2016, he filed a motion for an injunction against the defendants
for housing him in allegedly unsafe cells. (Docket #6). This motion must be
denied as moot. The plaintiff is no longer housed at the Jail. The plaintiff also
submitted a motion related to providing his trust account statement which
is similarly moot. (Docket #9).
Finally, the plaintiff has filed multiple motions for appointment of
counsel. (Docket #8 and #13). As a civil litigant, the plaintiff has no automatic
right to court-appointed counsel. Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.
1997). However, under 28 U.S.C. § 1915(e)(1), the “court may request an
attorney to represent any person unable to afford counsel.” The court should
seek counsel to represent the plaintiff if: (1) he has made reasonable attempts
to secure counsel; and (2) “‘the difficulty of the case—factually
and legally—exceeds the particular plaintiff’s capacity as a layperson to

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coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013)
(quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)).
The Court will deny the plaintiff’s motions under the second prong of
the Pruitt test. As to the first prong, it appears that the plaintiff has made
efforts to obtain counsel for himself. See (Docket #19). As to the second
prong, the plaintiff cites his mental illness and the complexity of this case as
reasons supporting counsel appointment. See (Docket #13 at 1-3). At this
stage, the plaintiff has not shown that the case exceeds his capacity to present
it. He has filed motions and other pleadings, submitted an amended
complaint, and responded to court orders as he deems appropriate. See
(Docket #6, #7, #8, #9, #13, #17, and #19). Further, the plaintiff has marshaled
evidence and argument (even if inadequate to warrant granting his requested
relief) in a cogent, if not always legible, manner. As such, the Court concludes
that recruitment of counsel is not necessary at this time. The plaintiff’s
motions to appoint counsel will be denied without prejudice.
Accordingly,
IT IS ORDERED that the plaintiff's motion for leave to proceed in
forma pauperis (Docket #2) be and the same is hereby GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motions for a
preliminary injunction (Docket #6) and for an extension of time (Docket #9)
be and the same are hereby DENIED as moot;
IT IS FURTHER ORDERED that the plaintiff’s motions for
appointment of counsel (Docket #8 and #13) be and the same are hereby
DENIED without prejudice;

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IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the complaint and this order upon the defendants pursuant
to Federal Rule of Civil Procedure 4. The plaintiff is advised that Congress
requires the U.S. Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages
is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§
0.114(a)(2), (a)(3). Although Congress requires the Court to order service by
the U.S. Marshals Service precisely because in forma pauperis plaintiffs are
indigent, it has not made any provision for these fees to be waived either by
the Court or by the U.S. Marshals Service;
IT IS FURTHER ORDERED that the defendants shall file a
responsive pleading to the complaint;
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 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). The payments
shall be clearly identified by the case name and number assigned to this
action;
IT IS FURTHER 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:

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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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS; doing so will only delay the processing of this matter. As each
filing will be electronically scanned and entered on the docket upon receipt
by the Clerk of Court, the plaintiff need not mail copies to the 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, and may
result in dismissal of this action for failure to prosecute the same.
Dated at Milwaukee, Wisconsin, this 7th day of March, 2017.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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