Zavala v. Aselson et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 8/25/2017 GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee. Defendants Captain Primmer, Warden Gary Boughton, and John Doe DISMISSED from action. Plaintiff PER MITTED to proceed against Defendant CO Aselson on an excessive force claim under the Eighth Amendment; copies of Plaintiff's Complaint and this Order to be electronically sent to the DOJ for service on Defendant, who shall file a responsive plea ding in 60 days. Discovery not to proceed until after Court enters a scheduling order. Agency having custody of Plaintiff to COLLECT balance of filing fee from Plaintiff's prison trust account in accordance with this Order. Clerk of Court to RETURN this case to Magistrate Judge David E. Jones for further proceedings. See Order. (cc: all counsel, via mail to Jimmy Zavala and Warden at Wisconsin Secure Program Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JIMMY ZAVALA,

v.

Plaintiff,

CO ASELSON,
CAPTAIN PRIMMER,
WARDEN GARY BOUGHTON,
and JOHN DOE,

Case No. 17-CV-982-DEJ-JPS

ORDER

Defendants.
On July 18, 2017, plaintiff Jimmy Zavala, a Wisconsin state prisoner
who is representing himself, filed a complaint alleging that his civil rights
had been violated. (Docket #1). This case is currently assigned to U.S.
Magistrate Judge David E. Jones. However, because not all parties have
had the opportunity to consent to magistrate judge jurisdiction, the case
was referred to a U.S. District Court Judge for the limited purpose of
screening the complaint. The case will be returned to Magistrate Judge
Jones after entry of this order.
The Prison Litigation Reform Act (PLRA) gives courts discretion to
allow prisoners to proceed with their lawsuits without prepaying the $350
filing fee, as long as they comply with certain requirements. 28 U.S.C. §
1915. One of those requirements is that the prisoner pay an initial partial
filing fee. On July 28, 2017, Judge Jones assessed an initial partial filing fee
of $24.30. (Docket #8.) Plaintiff paid that fee on August 7, 2017. The Court
will grant Plaintiff’s motion to proceed without prepayment of the full

filing fee. (Docket #2). He is required to pay the remainder of the filing fee
over time in the manner explained at the end of this 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. 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, 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); 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; 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)); 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
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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. The complaint allegations “must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher,
384 F.3d at 881.
In considering whether a complaint states a claim, courts should
first “identif[y] 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 wellpleaded factual allegations, the Court must “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); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The Court is obliged to give 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)).
Plaintiff alleges that he was working in the prison laundry
department when Defendant CO Aselson began to harass him by making
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racial comments. (Docket #1 at 1.) Plaintiff states that he was ignoring
Aselson, but, after Aselson called his name, Plaintiff turned to look at him.
Id. Aselson then threw a roll of balled-up tape, which hit Plaintiff in the
face. Id. Plaintiff alleges that his face immediately swelled up and the
wound later became infected. Id. Plaintiff asserts that he has been
prescribed medication for the wound and that he has experienced
significant pain as a result of the injury. Id. at 2.
Plaintiff asserts that he told staff what happened, but they did not
do anything. Id. at 1. He continued to work in the same area as Aselson. Id.
About five days after the incident, Plaintiff told Defendant Captain
Primmer about the incident via a request slip. Id. The next day, Primmer
and Captain Gardner (who is not a defendant) removed Plaintiff from his
job pending an investigation into the alleged misconduct. Id.
About three weeks later, Primmer told Plaintiff he could return to
work; they had concluded the investigation. Id. Primmer assured Plaintiff
that he could assume nothing like that would happen again. Id. Plaintiff
asked Primmer to keep the video footage so he could get a copy, but
Primmer told him there was no need for that because Aselson admitted to
the misconduct. Id. Plaintiff states that Defendant John Doe destroyed the
video footage, even though he asked Primmer to preserve it. Id. at 2.
Plaintiff alleges that defendant Warden Gary Boughton had an
obligation to protect him, yet he allowed Plaintiff to be placed back in the
same workspace as Aselson even though Aselson admitted to the
misconduct. Id. Plaintiff also alleges that Primmer retaliated against him
for making the complaint by forcing him to work with Aselson after the
incident.

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Section 1983 “creates a cause of action based on personal liability
and predicated upon fault; thus liability does not attach unless the
individual defendant caused or participated in a constitutional violation.”
Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). There is no supervisory
liability, collective liability, or vicarious liability under 42 U.S.C. § 1983.
See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). In other words,
supervisors such as Warden Boughton will not be held liable for the
misconduct of those they oversee. Supervisors will be liable only if they
are personally involved in or responsible for the violation of a plaintiff’s
civil rights. Here, there is no allegation that Warden Boughton even knew
about the incident, let alone that he was personally involved in or
responsible for it. As such, Plaintiff fails to state a claim against him.
To state an excessive force claim under the Eighth Amendment, a
plaintiff must allege that a prison official applied force “maliciously and
sadistically to cause harm.” Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010). The
Court will allow Plaintiff to proceed against Aselson on an excessive force
claim based on his allegations that he threw balled-up tape at Plaintiff’s
face for no reason and with sufficient force to cause significant injury.
To state a First Amendment retaliation claim, a plaintiff must allege
that (1) he engaged in an activity protected by the First Amendment; (2)
he suffered a deprivation that would likely deter First Amendment
activity in the future; and (3) the First Amendment activity was “at least a
motivating factor” in the defendant’s decision to take the retaliatory
action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).
Plaintiff fails to allege that he suffered a deprivation at the hands of
Primmer that would likely deter First Amendment activity in the future,
so he may not proceed on this claim. Plaintiff alleges that Primmer forced
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him to continue to work alongside Aselson as a way of retaliating against
Plaintiff for making a complaint. This theory fails, however, for a couple
of reasons. First, if Plaintiff had not made the complaint, he still would
have had to work alongside Aselson because no one would have known
about the misconduct. In other words, Plaintiff did not suffer a
deprivation as a result of making the complaint—Primmer merely
maintained the status quo.
Second, according to Plaintiff, Primmer informed him that Aselson
had admitted to the alleged misconduct, and he assured him that it would
not happen again. Thus, Primmer investigated Plaintiff’s claim and
handled the situation such that he was comfortable assuring Plaintiff that
he was safe because Aselson would not engage in similar misconduct in
the future. Given that Primmer took sufficient steps to address Aselson’s
alleged misconduct, Plaintiff did not suffer a deprivation by having to
continue to work alongside Aselson.
Finally, the Court will not allow Plaintiff to proceed against John
Doe based on his allegations that John Doe destroyed video footage of the
alleged incident despite Plaintiff asking Primmer to preserve it. Plaintiff
does not have a constitutional right to the preservation of evidence. That
said, at the appropriate time (i.e., after some discovery), Plaintiff may be
able to seek the imposition of sanctions for spoliation of evidence. See
Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008);
Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002). Further
development of the record is necessary before the Court can make that
determination.
Accordingly,

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IT IS ORDERED that Plaintiff’s motion for leave to proceed
without prepayment of the filing fee (Docket #2) is GRANTED;
IT IS FURTHER ORDERED that Defendants Captain Primmer,
Warden Gary Boughton, and John Doe be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s complaint and this order will be electronically sent to
the Wisconsin Department of Justice for service on Defendant CO
Aselson;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendant CO Aselson shall file a responsive pleading to the complaint
within sixty (60) days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $325.70 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;
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IT IS FURTHER ORDERED that the parties may not begin
discovery until after the Court enters a scheduling order setting deadlines
for discovery and dispositive motions;
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, Plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court.1 If
Plaintiff is no longer incarcerated at a Prisoner E-Filing institution, he will
be required to submit all correspondence and legal material to:
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. It will only delay the processing of the matter.
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
IT IS FURTHER ORDERED that the Clerk’s Office return this case
to Magistrate Judge David E. Jones for further proceedings.

1
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.
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Dated at Milwaukee, Wisconsin, this 25th day of August, 2017.
BY THE COURT:

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

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