Davis-Clair v. Turck et al
Filing
11
ORDER signed by Judge J.P. Stadtmueller on 5/12/2017: GRANTING 6 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING as moot 8 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DISMISSING action pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; and CERTIFYING that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless t he plaintiff offers bonafide arguments supporting his appeal. Clerk of Court to document that the plaintiff has incurred a "strike" under 28 U.S.C. § 1915(g). Agency having custody of plaintiff to collect balance of filing fee from plaintiff's prison trust account. See Order. (cc: all counsel, via mail to Christopher Davis-Clair and Warden at Wisconsin Secure Program Facility) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER DAVIS‐CLAIR,
Plaintiff,
v.
Case No. 17‐CV‐389‐JPS
C.O. TURCK, C. FRANCOIS, K.
O’DELL, and JOHN DOES 1 ‐ 2,
Defendants.
ORDER
Plaintiff, who is incarcerated at the Wisconsin Secure Program Facility
(“WSPF”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). This matter comes before the Court on
Plaintiff’s motion to proceed in forma pauperis. (Docket #6).1 Plaintiff has been
assessed and paid an initial partial filing fee of $18.36. 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. Id. § 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. Id.
§ 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,
1
Plaintiff inexplicably filed the same motion to proceed in forma pauperis one
week later. (Docket #8). That second motion will be denied as moot.
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 Atl. 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. 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.
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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 North
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)).
Although he is currently housed at WSPF, Plaintiff’s allegations relate
to events which occurred at his previous institution, Green Bay Correctional
Institution (“GBCI”). At some point (Plaintiff does not provide a date),
Plaintiff was told that he would be transferred to WSPF. (Docket #1‐2 at 1).
Plaintiff spoke with a Defendant John Doe social worker that the move
would lead him to attempt suicide, citing the increased distance from family
support. Id. Later that day, Plaintiff wrote to “PSU,” which the Court
assumes stands for “Psychological Services Unit,” asking to speak with
someone about that concern. Id. The Defendant John Doe PSU supervisor did
not respond to that request.
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On January 15, 2016, Plaintiff had a hearing with a “PRC” committee,
which included Defendants K. O’Dell (“O’Dell”), an offender class specialist,
and C. Francois (“Francois”), the GBCI corrections program supervisor. Id.
Plaintiff informed them that a transfer to WSPF may prompt suicide
attempts, but they responded that “you are just going to have to deal with
it.” Id. Plaintiff attached an exhibit to his complaint which appears to be a
report from that hearing. (Docket #1‐2 at 5‐6). The report indicates that the
move to WSPF was prompted by Plaintiff’s high security classification and
his own misbehavior. Id. As support for denying Plaintiff’s request to stay at
GBCI, the committee cited Plaintiff’s crime (murder), his two recent major
conduct reports (both for assault), and certain unmet programming
requirements. Id. The report acknowledges Plaintiff’s threats of self‐harm and
says that his statements “should be communicated to PSU and Security staff
at GBCI and at WSPF.” Id. at 5.
On February 6, 2016, Defendant C.O. Turck (“Turck”) told Plaintiff
that he was being transferred to WSPF the next day. (Docket #1 at 2). Plaintiff
asked Turck to summon a PSU worker and have him taken to an observation
cell. Id. He apparently did not do so. Id. When Turck walked away, Plaintiff
grabbed a razor and began cutting his wrist. Id. Turck returned and told
Plaintiff to stop cutting himself, and Plaintiff refused. Id. Turck then got a
nearby sergeant involved, who also told Plaintiff to stop. Id. Eventually, after
being threatened with pepper spray, Plaintiff stopped cutting himself and
was taken to “HSU,” presumably the “Health Services Unit,” to “get cleaned
up.” Id. Plaintiff was then taken to an observation cell in the restrictive
housing unit. Id. The next day, Plaintiff was transferred to Dodge
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Correctional Institution, not WSPF; Plaintiff does not say when the eventual
transfer to WSPF occurred. Id.
Plaintiff alleges that if Turck would have gotten a PSU worker, he
never would have cut himself. Id. He maintains that, pursuant to an
administrative code provision, security staff are required to tell a
psychologist if an inmate threatens suicide. Id. at 3. Plaintiff further alleges
that all Defendants were placed on notice of his risk of suicide. Id. He
believes that they should have placed him in observation or otherwise
obtained help from PSU. Id. Plaintiff asserts that all Defendants were
deliberately indifferent to his serious medical needs, in violation of the
Eighth Amendment. Id.
Claims for deliberate indifferent to an inmate’s suicide risk are legion
in federal courts, and so extensive case law has developed to interpret them.
The basic formulation of the claim involves an objective and a subjective
component. Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006). First, Plaintiff
must show that the harm (or potential harm) was objectively, sufficiently
serious and a substantial risk to his health. Id.; Farmer v. Brennan, 511 U.S.
825, 832 (1994). “It goes without saying that ‘suicide is a serious harm.’”
Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001) (quoting Estate of Cole
by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)).
Second, Plaintiff must establish that Defendants displayed deliberate
indifference to his risk of suicide. Collins, 462 F.3d at 761; Sanville, 266 F.3d at
733. This, in turn, requires a dual showing that Defendants (1) subjectively
knew that Plaintiff was at substantial risk of committing suicide and (2) were
deliberately indifferent to that risk. Matos ex rel. Matos v. O’Sullivan, 335 F.3d
553, 556 (7th Cir. 2003). As to the first prong, Plaintiff must prove that
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Defendants knew—rather than merely should have known—of a significant
likelihood that he might imminently seek to commit suicide. Estate of Novack
ex rel. Turbin v. County of Wood, 226 F.3d 525, 529 (7th Cir. 2000); Matos, 335
F.3d at 557. Plaintiff’s allegations do not satisfy this element. For all
Defendants save Turck, the only warning they received from Plaintiff about
a suicide risk was his statements that a transfer to WSPF might cause him to
attempt suicide. None received any indication that Plaintiff would imminently
begin self‐harming activity, and indeed he did not; the first alleged suicide
attempt was weeks after he made the statements. As to Turck, Plaintiff’s
statements were more direct. He informed Turck that he wanted to speak
with psychological services right away but Turck ignored his request. Still,
Plaintiff does not allege that he told Turck he was contemplating suicide,
only that he desired to speak with a psychologist. This is insufficient to put
Turck on notice of Plaintiff’s potential for suicide. See Pittmann ex rel.
Hamilton v. County of Madison, Ill., 746 F.3d 766, 776–78 (7th Cir. 2014) (“[A]
prisoner’s mere request to see a psychiatric crisis counselor does not,
standing alone, put a prison officer on notice of the imminent possibility of
suicide.”).
As to the second prong, Plaintiff must establish that Defendants failed
to take reasonable steps to prevent him from committing suicide. Estate of
Novack, 226 F.3d at 529; Fisher v. Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005). This
is a heavy burden; the Seventh Circuit has emphasized that deliberate
indifference “comprehends more than mere negligence but less than the
purposeful or knowing infliction of harm.” Estate of Novack, 226 F.3d at 529;
Peate v. McCann, 294 F.3d 879, 882 (7th Cir. 2002). Indeed, the Court of
Appeals has characterized the required showing “as ‘something approaching
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a total unconcern for [the prisoner’s] welfare in the face of serious risks.’”
Collins, 462 F.3d at 762 (quoting Duane v. Lane, 959 F.2d 673, 677 (7th Cir.
1992)). Accordingly, to establish deliberate indifference, the plaintiff must
present evidence “that an individual defendant intentionally disregarded the
known risk to inmate health or safety.” Id.; Matos, 335 F.3d at 557.
Plaintiff likewise fails to adequately allege this element. Plaintiff does
not allege that the John Does did anything in response to his statements
about potential suicide. However, Plaintiff also fails to allege what authority
the John Does had to transfer him to an observation cell, which is the sole
basis for his claim. Notably, he does not state that they provided deficient
counseling which lead to psychological vulnerability and suicidal ideation.
As to O’Dell and Francois, they took note of Plaintiff’s statements and the
hearing report states that security staff were to be informed of them. Rather
than intentionally disregarding his suicide risk, this shows that they took
active steps to abate the risk. This is true even considering that they did not
change their decision to transfer Plaintiff in light of his comments. The
committee’s transfer decision was based on Plaintiff’s extreme security risk
and the Court will not interfere with that decision. Garza v. Miller, 688 F.2d
480, 488 (7th Cir. 1982) (decisions to transfer an inmate “are entirely within
the discretion of prison authorities”). Finally, like the John Does, it is unclear
whether O’Dell or Francois could actually order that Plaintiff be placed in
observation.
Only Turck remains. It is important to note that prison officials are not
required to perform their duties “flawlessly,” nor is negligence enough to
establish a constitutional violation. Riccardo v. Rausch, 375 F.3d 521, 525 (7th
Cir. 2004). A defendant need not “take perfect action or even reasonable
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action[,] . . . his action must be reckless before § 1983 liability can be found.”
Cavalieri v. Shepard, 321 F.3d 616, 622 (7th Cir. 2016). Plaintiff’s complaint
does not establish that Turck acted recklessly in the face of his February 8,
2016 self‐harming activity. Though Plaintiff wishes that Turck had
immediately contacted PSU, Plaintiff’s desires do not dictate what is
reasonable. Turck responded immediately once he observed Plaintiff’s self‐
harming activity, and ultimately took Plaintiff to the observation cell. While
Turck’s conduct may not have been ideal, it does not display recklessness or
a total unconcern for Plaintiff’s suicide risk. This is reinforced by the vague
nature of Plaintiff’s pre‐harm statement; Plaintiff did not give Turck an
affirmative indication that a cutting episode was imminent.
Plaintiff’s complaint fails to state any claims upon which relief may be
granted. This action must, therefore, be dismissed with prejudice.
Accordingly,
IT IS THEREFORE ORDERED that the plaintiff’s motion for leave to
proceed in forma pauperis (Docket #6) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the plaintiff’s second motion for
leave to proceed in forma pauperis (Docket #8) be and the same is hereby
DENIED as moot;
IT IS FURTHER ORDERED that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for
failure to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
the plaintiff has incurred a “strike” under 28 U.S.C. § 1915(g);
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IT IS FURTHER ORDERED that the agency having custody of the
plaintiff shall collect from his institution 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. If the plaintiff is transferred to
another institution, county, state, or federal, the transferring institution shall
forward a copy of this Order along with plaintiff’s remaining balance to the
receiving institution.
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
THE COURT FURTHER CERTIFIES that any appeal from this matter
would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless the
plaintiff offers bonafide arguments supporting his appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of May, 2017.
BY THE COURT:
____________________________________
J.P. Stadtmueller
U.S. District Judge
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