Bergeron-Davila v. Schmaling et al

Filing 55

ORDER signed by Judge J.P. Stadtmueller on 5/24/2017: DENYING 26 , 27 Plaintiff's Motions to Alter or Reconsider the Court's 3/7/2017 Initial Screening Order; DENYING 28 Plaintiff's Motion for Reconsideration of Motion for Appoin tment of Counsel; DENYING 37 Plaintiff's Motion for Recusal; GRANTING 39 Plaintiff's Motion for Leave to File Amended Complaint; DENYING 46 Plaintiff's Motion for Examination; DENYING 47 Plaintiff's Motion to Stay; DENYING 49 Plaintiff's Motion to Produce Information or Appoint Counsel; DENYING 50 Plaintiff's Motion for Default Judgment; and GRANTING 54 Plaintiff's Motion for Return of Discovery Documents. Plaintiff's Second Amended Complaint to become the operative pleading. Plaintiff PERMITTED to proceed on the following claims: deliberate indifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment, and intentionally treating Plaintiff differently than other similarly situated persons, in violation of the Fourteenth Amendment, against all defendants; and implementation of policies or practices behind the alleged constitutional violations against Defendant Christopher Schmaling. See Order for further details. (cc: all counsel; via mail to Raymond J. Bergeron Davila at Columbia Correctional Institution, with copies of Docket #41-45) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,

v.

Plaintiff,

Case No. 16-CV-1665-JPS

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

ORDER

Defendants.
On April 14, 2017, Plaintiff filed a motion for leave to amend his
complaint. (Docket #39). Plaintiff’s proposed second amendment is
intended to clear up certain areas of the first amended complaint which
were difficult to read. Id. at 2.1 Plaintiff also attaches additional exhibits to
the second amended complaint. Id. at 3. Finally, the second amended
complaint provides further explanation of each of the claims Plaintiff
wishes to pursue. Id. For these reasons, and in light of the early stage of this
litigation, the Court finds it appropriate to grant Plaintiff leave to file a
second amended complaint. Fed. R. Civ. P. 15(a)(2).
As noted in the first screening order, 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). This includes Plaintiff’s proposed second amended complaint.
The Court must dismiss a complaint, or portion thereof, if the prisoner has
The first amended complaint was filed on March 3, 2017, and no leave was
required to do so. See Fed. R. Civ. P. (a)(1).
1

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. Id. § 1915A(b). All of the
standards cited in the first screening order remain applicable here. (Docket
#21 at 1-3).
The factual allegations of the second amended complaint are largely
identical to those in the first. (Docket #39-1). For brevity’s sake, the Court
includes by reference its factual discussion from the first screening order.
(Docket #21 at 3-6). Within those allegations, the Court discerned two viable
claims. Id. at 8. The first was for each of the Defendants deliberate
indifference to Plaintiff’s various forms of suicide risk, and the second was
an official capacity claim against Defendant Christopher Schmaling
(“Schmaling”) for any potential injunctive relief. Id.
Plaintiff’s motion for leave to amend included a helpful list of
changes in his second amended complaint, revealing that most are
concerned with clarifying the specific claims he wishes to advance. (Docket
#39 at 5-8). The list shows that Plaintiff wishes to proceed on the following
claims which were not identified in the Court’s first screening order: 1)
failure to protect Plaintiff from other inmates’ bullying, housing conditions
which facilitated self-harm, and clothing which could be used for self-harm;
2) a “deprivation of equal rights;” and 3) permitting official capacity claims
to proceed against additional defendants. The Court address each in turn.
Plaintiff’s allegations reveal that he feels he was treated differently
than other suicidal inmates. See (Docket #39-1 at 13). Such a claim would
fall under the Equal Protection Clause of the Fourteenth Amendment. In
this context, Plaintiff asserts a “class-of-one” style claim, wherein he must
prove that he was “intentionally treated differently from others similarly
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situated and that there is no rational basis for the difference in treatment.”
Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 601 (2008). While most circuits
require highly specific allegations regarding the “similarly situated”
element to validly state such a claim, the Seventh Circuit has set an
extremely low pleading standard. Geinosky v. City of Chicago, 675 F.3d 743,
747-48 (7th Cir. 2012). Consequently, though Plaintiff’s allegations are
vague as to the identity of any comparators, and the precise difference in
treatment they received, it must allow him to proceed on the claim at this
time.
Plaintiff may not proceed on his other proposed claims. First,
Plaintiff’s desired failure-to-protect claims are duplicative of the already
existing deliberate indifference claim. All center on Plaintiff’s self-harming
activity and all are subject to the same standards of proof under the Eighth
Amendment. Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010). All of
Plaintiff’s failure-to-protect concerns are subsumed into his deliberate
indifference claim. Second, only one official capacity claim is necessary.
Suits against county employees in their official capacity are suits against the
county itself. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658,
690 n.55 (1978). Schmaling, as Sheriff of Racine County, is the only
appropriate defendant. Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir.
2011).
Plaintiff’s operative claims are now the following (this supersedes
the previous statement of claims in the March 7, 2017 screening order):
Claim Number One: Deliberate indifference to Plaintiff’s serious
medical needs, in violation of the Eighth Amendment, against each of the
Defendants;

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Claim Number Two: Intentionally treating Plaintiff differently than
other similarly situated persons with respect to suicide prevention, in
violation of the Fourteenth Amendment, against each of the Defendants;
and
Claim Number Three: Implementation of policies or practices which
were the moving force behind the alleged constitutional violations, against
Defendant Christopher Schmaling.
The Court will further address Plaintiff’s other pending motions. On
March 14, 2017, Plaintiff filed a motion to alter the Court’s March 7, 2017
screening order in this matter. (Docket #26). With the Court’s acceptance of
the second amended complaint, this motion has become moot. On March
17, 2017, Plaintiff filed another similar motion, this time requesting
alteration of the Court’s screening order with relation to the Court’s ruling
on his motion for an injunction against Racine County Jail (the “Jail”).
(Docket #27). The Court denied the motion for an injunction as moot
because Plaintiff was not (and is not now) housed at the Jail. (Docket #21 at
8). Plaintiff’s motion to amend that ruling states that he returns to the Jail
on occasion, without specifying any particular times or dates, in order to
appear on criminal cases. (Docket #27). He also claims to be a “regular” at
the Jail because when not incarcerated, he is arrested frequently. Id.
Even generously reviewing the motion for injunction anew and on
its merits, it must be denied. Plaintiff must establish the following to
warrant entry of the requested preliminary injunction: “that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” D.U. v. Rhoades, 825 F.3d
331, 335 (7th Cir. 2016) (quoting Winter v. Natural Res. Defense Council, Inc.,
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555 U.S. 7, 20 (2008)). “A preliminary injunction ordering [a] defendant to
take an affirmative act rather than merely refrain from specific conduct,” as
is the case here, “is ‘cautiously viewed and sparingly issued.’” Knox v.
Shearing, 637 F. App’x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut.
of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)).2 A preliminary injunction is “an
extraordinary remedy and is never awarded as of right.” Id. (quoting
Winter, 555 U.S. at 24).
First, beyond his speculation that he will return to the Jail for court
dates or as a “regular,” Plaintiff provides no specific dates for any return to
the Jail. See (Docket #27). The lack of a potential future injury undermines
his claim for an injunction. Higgason v. Farley, 83 F.3d 807, 811 (7th Cir. 1996)
(“Higgason stated in response to the summary judgment motion that ‘upon
his release from disciplinary segregation [at WVCI], his return to the parent
institution from whence he came [ISP] is a virtual certainty.’ However, such
an allegation does not amount to a ‘showing’ or a ‘demonstration’ of the
likelihood of retransfer; Higgason has not pointed to anything in the record
supporting his estimate of ‘virtual certainty.’”).
Second, the Court cannot conclude that Plaintiff has shown anything
approaching a likelihood of success on the merits. See (Docket #6, #17, and
#27). This requires evidence, not merely allegations, and the only evidence
supporting Plaintiff’s claims at this stage is his own testimony. See Wheeler
v. Wexford Health Sources, Inc., 689 F.3d 680, 682-83 (7th Cir. 2012). Finally,

Plaintiff requests, inter alia, that the Jail change the way it assigns suicidal and
non-suicidal inmates to cells, make alterations to cell doors to prevent items being
passed in and out of cells, and reconstruct the cells in the suicide housing units to
make it more difficult to commit suicide within them (by moving air vents, for
example). (Docket #6 at 3).
2

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the weakness of the merits issue is viewed in combination with Plaintiff’s
failure to demonstrate that money damages would be an inadequate
remedy. Rhoades, 825 F.3d at 338 (Seventh Circuit’s sliding scale approach
considers the merits and irreparable harm issues together). Because of the
nebulous possibility of his return to the Jail for any extended period, and
the cautious approach required for issuing preliminary injunctions which
require affirmative acts, the Court concludes that Plaintiff has not shown a
likelihood of irreparable harm. The motion to alter the Court’s ruling on
Plaintiff’s motion for an injunction will be denied.
Also on March 17, 2017, Plaintiff requested reconsideration of the
Court’s denial of his motion for appointment of counsel. (Docket #28). He
complains that if he is placed on suicide watch, he may miss a deadline in
this matter. Id. This statement does not change the Court’s analysis under
the Pruitt test. See (Docket #21 at 8-9). The Seventh Circuit has emphasized
that “[t]he question is not whether a lawyer would present the case more
effectively than the pro se plaintiff; ‘if that were the test, district judges
would be required to request counsel for every indigent litigant.’” Pruitt v.
Mote, 503 F.3d 647, 655 (7th Cir. 2007) (quoting Johnson v. Doughty, 433 F.3d
1001, 1006 (7th Cir. 2006)) (internal quotation omitted). Instead, “[t]he
question is whether the plaintiff appears competent to litigate his own
claims, given their degree of difficulty, and this includes the tasks that
normally attend litigation: evidence gathering, preparing and responding
to motions and other court filings, and trial.” Id. Plaintiff’s submissions
show that he is more than capable of preparing filings and making
arguments he believes are appropriate without the assistance of counsel.
See (Docket #26, #27, #28, #39, #46, #47, #49, and #50). The Court will not use
this District’s extremely limited resources to appoint counsel for Plaintiff
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based on his speculation that he may miss deadlines. Plaintiff’s motion for
reconsideration of the Court’s ruling on his request for appoint counsel will
be denied. Further, the Court notes that it will not consider any additional
motions for appointment of counsel until discovery has closed in this
matter. (Docket #51 at 6).
On April 21, 2017, Plaintiff moved the Court to order him examined
by a doctor to determine the severity of his self-harming activity. (Docket
#46). Plaintiff cites Rule 35 for support of this request. Id. However, that
Rule exists to allow a party to demand examination of an opposing party; it
is not intended to permit a plaintiff to seek a medical examination for
himself. See Fed. R. Civ. P. 35. In any event, Rule 35 requires that a motion
made pursuant to the Rule identify the “time, place, manner, conditions,
and scope of the examination, as well as the person or persons who will
perform it.” Id. (a)(2)(B). Plaintiff’s motion lacks this information.
It appears that Plaintiff actually wants the Court to appoint a medical
expert to examine him. A court can appoint an expert pursuant to Federal
Rule of Evidence 706 “to help sort through conflicting evidence, . . . but it
need not appoint an expert for a party’s own benefit or to explain symptoms
that can be understood by a layperson[.]” Turner v. Cox, 569 F. App’x 463,
468 (7th Cir. 2014). Appointment of an expert is a matter left to the Court’s
discretion. Id. The Court declines to appoint a medical expert in this matter.
Plaintiff’s request is simply one for his own benefit so that he may avoid
having to retain an expert himself. Thus, under either Rule 35 and Turner,
Plaintiff’s motion for a medical examination must be denied.
On May 1, 2017, Plaintiff filed two motions related to the Doe
defendants. The first requests assistance in identifying those defendants.
(Docket #49). The Court cannot give Plaintiff legal advice in this regard, and
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instead refers him to the Court’s trial scheduling order, (Docket #51 at 2-3),
the litigation guides attached thereto, (Docket #51-6 and #51-7), and the
Federal Rules of Civil Procedure for discovery matters, Fed. R. Civ. P. 2637. The second motion asks for entry of default judgment against the Doe
defendants. (Docket #50). The Doe defendants are fictitious persons (acting
as placeholders) and they need not answer Plaintiff’s complaint until he
identifies them, amends his complaint to reflect their discovered identities,
and they are served with that amended complaint. Default judgment is thus
inappropriate at this stage and Plaintiff’s motion seeking it must be denied.
The Court will deny Plaintiff’s motion to stay these proceedings,
which he requested pending a ruling on his motion to amend his complaint
and for recusal. (Docket #47). Both of those motions are addressed herein,
and so the request for a stay is moot. Finally, as just noted, Plaintiff’s motion
to stay mentions a motion for recusal. Id. at 1. It appears Plaintiff references
his April 11, 2017 “request for a response to my pending motions.” (Docket
#37) (capitalization altered). Though not posed as a motion for recusal, the
Court will address it as such.
The standards governing a judge’s recusal are set out in 28 U.S.C.
Sections 144 and 455. Section 144 requires a judge to recuse himself for
“personal bias or prejudice.” 28 U.S.C. § 144. Section 455(a) requires a
federal judge to “disqualify himself in any proceeding in which his
impartiality might reasonably be questioned,” and Section 455(b)(1)
provides that a judge shall disqualify himself if he “has a personal bias or
prejudice concerning a party.” Id. § 455(a) and (b)(1). Because the phrase
“personal bias or prejudice” found in Section 144 mirrors the language of
Section 455(b), they may be considered together. Brokaw v. Mercer County,
235 F.3d 1000, 1025 (7th Cir. 2000). In deciding whether a judge must
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disqualify himself under Section 455(b)(1), the question is whether a
reasonable person would be convinced the judge was biased. Hook v.
McDade, 89 F.3d 350, 355 (7th Cir. 1996) (internal quotation omitted).
Recusal under Section 455(b)(1) “is required only if actual bias or prejudice
is proved by compelling evidence.” Id.
Plaintiff’s arguments do not merit recusal under either statute.
Plaintiff complains that the Court has denied his various motions and
requests, allegedly by overlooking certain aspects of his filings. (Docket
#37). He further criticizes the Court’s orders, claiming that they did not
sufficiently explain the reasons for its decisions. Id. Adverse rulings are not
a ground for recusal and show no bias in and of themselves. Liteky v. United
States, 510 U.S. 540, 555-56 (1994). Plaintiff points to no other considerations
which would support a reasonable person’s conclusion that the Court is
biased against him. The motion for recusal will be denied.
Lastly, on May 22, 2017, Plaintiff submitted a request to have certain
discovery materials returned to him. (Docket #54). Plaintiff had improperly
attempted to file such materials with the Court, when they should have
been sent directly to Defendants. (Docket #48). The Court will grant
Plaintiff’s request, but the Court warns Plaintiff that it will not do so in the
future. If Plaintiff files a document with the Court or sends it to an opposing
party, he must keep a copy of the document for his own records.
Accordingly,
IT IS ORDERED that Plaintiff’s motions to alter or reconsider the
Court’s March 7, 2017 initial screening order (Docket #26 and #27) be and
the same are hereby DENIED;

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IT

IS

FURTHER

ORDERED

that

Plaintiff’s

motion

for

reconsideration of his motion for appointment of counsel (Docket #28) be
and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for recusal
(Docket #37) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file
an amended complaint (Docket #39) be and the same is hereby GRANTED,
and the Second Amended Complaint shall become the operative pleading
in this matter;
IT IS FURTHER ORDERED that Plaintiff’s motion for an
examination (Docket #46) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to stay (Docket
#47) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for production
of information or for appointment of counsel (Docket #49) be and the same
is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for default
judgment (Docket #50) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for return of
documents (Docket #54) be and the same is hereby GRANTED; and
IT IS FURTHER ORDERED that the Clerk of the Court shall send
Plaintiff the discovery documents he filed on April 20, 2017 (Docket #41,
#42, #43, #44, and #45).

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Dated at Milwaukee, Wisconsin, this 24th day of May, 2017.
BY THE COURT:

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

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