Zavala v. Aselson et al

Filing 39

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 6/28/2018. 19 Plaintiff's MOTION for Summary Judgment DENIED. 26 Defendant's MOTION for Summary Judgment GRANTED. Case DISMISSED under 28 USC §§1915(e)(2)(B) and 1915A(b)( 1) because complaint fails to state claim and is frivolous. Clerk of Court to document that plaintiff has incurred "strike" under 28 U.S.C. §1915(g). (cc: all counsel, via mail to Jimmy Zavala at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JIMMY ZAVALA,
Plaintiff,
v.

Case No. 17-cv-982-pp

RICHARD ASLESON,
Defendant.
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 19), GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. NO. 26) AND DISMISSING CASE
The plaintiff, who is representing himself, filed this lawsuit under 42
U.S.C. §1983. Dkt. No. 1. The court allowed the plaintiff to proceed on a claim
that the defendant used excessive force in violation of the Eighth Amendment
when he allegedly threw balled-up tape at the plaintiff’s face with enough force
to cause significant injury. Dkt. No. 9.
The parties filed cross-motions for summary judgment, dkt. nos. 19, 26,
which are fully briefed. The court will deny the plaintiff’s motion, grant the
defendant’s motion, and dismiss this case.
I.

RELEVANT FACTS
The plaintiff, a Wisconsin state prisoner, was housed at the Wisconsin

Secure Program Facility (WSPF) during the events at issue in this case. Dkt.
No. 36 at ¶1. The defendant is a correctional officer at WSPF, and on March 16,
2017, was supervising the inmates working in the WSPF laundry department.
1

Id. at ¶2; Dkt. No. 31 at ¶1. The plaintiff was working folding clothes. Dkt. No.
31 at ¶1.
According to the plaintiff, the defendant was “walking around the room
horse playing saying racial comments” when “out of nowhere [the defendant]
called [the plaintiff’s] name and when he turned around [the defendant] had
thrown a roll of tape in a ball which hit [the plaintiff] in the face which instantly
sw[e]lled up.” Dkt. No. 34 at ¶6. The defendant, on the other hand, states that
he was trying to “toss a crumpled piece of paper into a waste basket that was
approximately 6 feet away from where he was standing.” Dkt. No. 28 at ¶6. The
defendant indicates that the waste basket was “several feet” behind the
plaintiff’s work station. Id. The defendant explains that he missed the waste
basket, and “accidentally hit [the plaintiff] in the shoulder/neck area. Id. at ¶7.
The defendant says that he immediately apologized to the plaintiff, who
acknowledged the apology and did not say anything or react in any way to
indicate he was hurt or upset. Id. at ¶¶8-9. The defendant explains that, based
on the plaintiff’s response, he didn’t think it was an issue, so he didn’t
document the incident or write a report. Id. at ¶10.
The plaintiff disputes that the defendant apologized. Dkt. No. 34 at ¶8.
He disputes that he did not react in any way; the plaintiff says that he told staff
what had happened, but they didn’t do anything. Id. at ¶9. The plaintiff
disagrees with the defendant’s contention that the incident “wasn’t an issue,”
indicating that the plaintiff believes the defendant did it intentionally, so the
defendant “would have known.” Id. at ¶10.
2

On March 22, 2017—six days after the incident in the laundry room—the
plaintiff submitted an interview/information request. Dkt. No. 30-1 at 24-25.
In this request, he complained that the defendant “pitched a fastball of paper
to [his] face,” in violation of institution rules. Id. at 24. The request did not say
anything about the defendant making “racial comments.” Another staff member
informed the defendant that the plaintiff had complained about the incident,
dkt. no. 28 at ¶12, so the defendant wrote up an incident report, dkt. no. 28 at
¶13; dkt. no. 30-1 at 26-27. In that incident report, the defendant explained
that he’d been trying to toss the crumpled paper into a trash can and had
accidentally hit the plaintiff. Id. at 27.
The institution staff followed up with an investigation, and interviewed
the plaintiff. Dkt. No. 30-1 at 7-8. At the interview, the plaintiff told the
investigators that the defendant had “crumbled up” the paper and “just
chucked it” at the plaintiff’s face. Id. at 7. The plaintiff also told the
investigators that he wasn’t injured, but that “it hurt.” Id. at 8. He stated that
he had not sought medical attention. He also said that he had waited a week to
report the incident. Id. The plaintiff did not say anything to the investigators
about the defendant making “racial comments.”
It is not clear whether the plaintiff disputes that he told the investigators
these things. He claims at summary judgment, however, that he was “forced to
go to the health service” because of the incident, that he “ had an infection in
his cheek which was swollen,” that he was given medication, and that “to this
day” he was still having problems and was in pain. Dkt. No. 34 at ¶¶16-17.
3

None of the other four inmates whom the investigators interviewed saw
the incident, dkt. no. 30-1 at 9-16, although one of them recalled that the
defendant apologized “right away,” and opined that the defendant had not hit
the plaintiff on purpose, dkt. no. 30-1 at 15.
Prison staff notified the defendant that after concluding the investigation,
the “Appointing Authority” had decided not to take any formal disciplinary
action against him “regarding allegations of intent to harm [the plaintiff] when
[the defendant] threw paper away.” Id. at 1.
On April 17, 2017, the plaintiff sent the warden a letter, alleging that the
defendant had intentionally hit him in the face with a ball of paper. Dkt. No.
30-1 at 17. The plaintiff complained to the warden that although he’d informed
security about the incident, the defendant hadn’t been disciplined. Id. On April
27, 2017, the plaintiff filed a formal inmate complaint, again alleging that the
defendant had intentionally hit him on the face with a “hard ball of paper”
while he was folding clothes. Id. at 10. The next day, the inmate complaint
examiner recommended dismissal, noting that there already had been an
investigation. Id. at 2. The warden dismissed the complaint. Id. at 3. On May 5,
2017, the plaintiff appealed the dismissal of the complaint, this time alleging
that the defendant had hit him on the face “with a heavy paper balled with
masking tape.” Id. at 13. The complaint examiner recommended dismissal, id.
at 5, and the Secretary accepted that recommendation, id. at 6, 8.

4

II.

DISCUSSION
A party is entitled to summary judgment if he shows that there is no

genuine dispute as to any material fact and it is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). To survive a motion for summary judgment,
a non-moving party must show that sufficient evidence exists to allow a jury to
return a verdict in its favor. Brummett v. Sinclair Broad. Grp., Inc., 414 F.3d
686, 692 (7th Cir. 2005). For the purposes of deciding the parties’ crossmotion, the court resolves all factual disputes and make all reasonable factual
inferences in favor of the non-moving party. Springer v. Durflinger, 518 F.3d
479, 483-84 (7th Cir. 2008).
The court begins by noting that it allowed the plaintiff to proceed on one
claim against one defendant. In the August 24, 2017 screening order, the court
allowed the plaintiff to proceed on a claim that defendant Aselson used
excessive force against him, in violation of the Eighth Amendment. Dkt. No. 9
at 5. The defendant spent two pages of his brief arguing that the plaintiff had
not exhausted his remedies on his claims of “racial animus.” Dkt. No. 27 at 35. The court will not address these arguments, because the court did not allow
the plaintiff to proceed on any such claim.
As to the plaintiff’s excessive force claim, a prison official violates an
inmate’s rights under the Eighth Amendment are violated by the “unnecessary
and wanton infliction of pain.” Lewis v. Downey, 581 F.3d 467, 475 (7th Cir.
2009). Not every “malevolent touch” by a prison official, however, gives rise to a
constitutional claim. Id. The Seventh Circuit Court of Appeals has explained
5

that “[t]he use of de minimis force, so long as it ‘is not of a sort repugnant to
the conscience of mankind,’ is not of Eighth Amendment concern.” Id. (citing
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)). “Even if an officer’s use of force
serves no good-faith disciplinary purpose, the force may be so ‘de minimis’ that
it does not violate the Eighth Amendment.” Hendrickson v. Cooper, 589 F.3d
887, 890 (7th Cir. 2009) (citations omitted). When evaluating whether force was
de minimis, courts look to the pain caused by the force, not the resulting
injury. Lewis, 581 F.3d at 475 (citations omitted).
The plaintiff’s allegations about what happened in the laundry room last
March have evolved over time. A week after the incident happened, he
complained to institution staff that the defendant had thrown balled-up paper
at his face. He continued to complain about the balled-up, or “crumbled,”
paper in several other complaints. Almost two months after the incident,
however, in his May 5, 2017 appeal of the dismissal of his inmate complaint,
the plaintiff claimed for the first time that what the defendant had thrown at
him was “heavy paper balled with masking tape.” By the time the plaintiff
signed his §1983 complaint on July 17, 2017, the plaintiff was claiming that
the defendant had “thrown a roll of tape in a ball” and hit him in the face. Dkt.
No. 1 at 1, ¶4.
This was the claim that the court reviewed in the screening order—the
claim that the defendant had thrown a “roll of tape” at the plaintiff’s face. The
court could imagine that if a person were to deliberately throw, with force, a roll
of tape at another person’s face, that might constitute the wanton and
6

unnecessary infliction of pain. Now, however, having reviewed all of the
plaintiff’s prior statements about the incident, it appears to the court that the
plaintiff has embellished the facts as time has gone on. His original complaints
to the institution were that the defendant had violated the institution rule that
prohibited horseplay, by hitting him in the face with a balled-up piece of paper.
In his April 2017 inmate complaint and his May 2017 appeal, the plaintiff
included affidavits, sworn under penalty of perjury, attesting that the
defendant threw a “ball of paper” at him. Dkt. No. 30-2 at 12, 15-16. He told
the investigators during their investigatory interview that he did not seek
medical attention and he was not injured. Dkt. No. 36, ¶16-17. Now, in federal
court, he has alleged that the defendant subjected him to excessive force by
deliberately throwing a roll of tape at him, which injured him so badly that he
had to go to health services for treatment and is still suffering today. The
plaintiff cannot have it both ways. He is stuck with his prior sworn statements
that the defendant threw balled-up paper.
The defendant has asserted, since the incident occurred, that it was an
accident—he was trying to toss a crumpled piece of paper into a trash can,
missed, and hit the plaintiff. The plaintiff insists that the defendant threw the
paper at his face on purpose. While this is certainly a factual “dispute,” it is not
a dispute as to an issue of material fact, which is what is required for a plaintiff
to survive summary judgment. Even if the court were to credit the plaintiff’s
claim that the defendant intentionally threw a balled-up piece of paper at the
plaintiff’s face, such force is de minimis, is not “repugnant to the conscience of
7

mankind” and does not violate the Eighth Amendment. See, e.g., Phiffer v.
Grams, No. 09-cv-286, 2009 WL 1969531, at *1 (W.D. Wis. July 8, 2009)
(throwing a roll of toilet paper at an inmate failed to state a claim); Baker v.
Reitz, No. 1:cv-12-1452, 2012 WL 6055591, at *2 (M.D. Pa. Dec. 6, 2012)
(throwing a rolled-up grievance form at an inmate failed to state a claim).
Even if there are factual disputes between the parties, and even if the
court accepts the plaintiff’s (original) version of events as true, the plaintiff is
not entitled to judgment as a matter of law. The defendant is entitled to
summary judgment; the plaintiff is not.
Section 1915A of the Prisoner Litigation Reform Act requires courts to
“screen” complaints to identify cognizable claims, and to dismiss the complaint
if the complaint is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. §1915A. If a court determines that a complaint
should be dismissed in its entirety at the screening stage, the court issues a
“strike” against the prisoner. Section 1915(g) prohibits a prisoner from bringing
a civil action without prepaying the full filing fee if the prisoner has incurred
three strikes. 28 U.S.C. §1915(g).
Nothing in §1915(g) limits courts to issuing strikes only at the screening
stage. That section states that a prisoner incurs a strike if the prisoner has
“brought an action or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to state a claim upon
which relief may be granted . . . .” A case that is dismissed on summary
judgment because it alleges a frivolous cause of action, therefore, may earn the
8

plaintiff a strike. See Blakely v. Wards, 738 F.3d 607, 613 (4th Cir. 2013) (“It
would subvert the PLRA’s very purpose to prevent cases dismissed on
summary judgment from counting as strikes even when those cases were
expressly deemed frivolous, malicious, or failing to state a claim.”).
The issue this court must consider is not whether the plaintiff filed this
lawsuit in order to harass the defendants, or whether he filed it in an attempt
to coerce the defendants into giving him things that many people who aren’t in
prison don’t have. Rather, the court must consider whether, regardless of the
plaintiff’s motive, his complaint states a non-frivolous claim upon which relief
may be granted. The court finds that the plaintiff’s complaint stated a frivolous
claim. The plaintiff got hit in the face with a wadded-up piece of paper, by
accident. If he had told this court that in his complaint, it would not have
gotten past screening. His after-the-fact claim that he was hit with a roll of
tape, and injured, is not credible, and the court questions whether the plaintiff
made the claim in good faith.
The court is granting the defendant’s motion for summary judgment, and
denying the plaintiff’s, because the plaintiff has not stated a legal claim for
relief, and because the court finds his claim frivolous. Under 28 U.S.C.
§1915(g), the court will assess a strike against the plaintiff.
III.

CONCLUSION
The court ORDERS that the plaintiff’s motion for summary judgment is

DENIED. Dkt. No. 19.

9

The court ORDERS that the defendant’s motion for summary judgment
is GRANTED. Dkt. No. 26.
The court ORDERS that this case is DISMISSED under 28 U.S.C.
§§1915(e)(2)(B) and 1915A(b)(1) because the complaint fails to state a claim and
is frivolous. The court will document that the plaintiff has incurred a “strike”
under 28 U.S.C. §1915(g), and will enter judgment accordingly.
This order and the judgment to follow are final. A dissatisfied party may
appeal this court’s decision to the Court of Appeals for the Seventh Circuit by
filing in this court a notice of appeal within 30 days of the entry of judgment.
See Federal Rule of Appellate Procedure 3, 4. This court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Federal
Rule of Appellate Procedure 4(a)(5)(A).
Under certain circumstances, a party may ask this court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for relief
from judgment under Federal Rule of Civil Procedure 60(b). Any motion under
Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry
of judgment. The court cannot extend this deadline. See Federal Rule of Civil
Procedure 6(b)(2). Any motion under Federal Rule of Civil Procedure 60(b) must
be filed within a reasonable time, generally no more than one year after the
entry of the judgment. The court cannot extend this deadline. See Federal Rule
of Civil Procedure 6(b)(2).

10

The court expects parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 28th day of June, 2018.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

11