McDaniels v. Smith et al

Filing 11

ORDER signed by Judge J.P. Stadtmueller on 9/5/2017: GRANTING 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and DENYING 2 Plaintiff's Motion for Preliminary Injunction. Defendants Warden Judy Smith, Jim Zanon, Todd Gillingham, Cindy O'Donnell, Brad Hompe, Kathy Sabel, John Doe, and City of Oshkosh Police Department DISMISSED from action. Plaintiff PERMITTED to proceed on claim of cruel and unusual punishment, in violation of the Eighth Ame ndment, aaginst Defendant Sgt. Pobranz. Copies of this Order and Plaintiff's Complaint to be electronically sent to Wisconsin DOJ for service on Defendant, who shall file a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT balance of filing fee from his prison trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Carlos C. McDaniels and Warden at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CARLOS C. MCDANIELS,
Plaintiff,

v.

WARDEN JUDY SMITH, JIM
ZANON, TODD GILLINGHAM, SGT.
POBRANZ, CINDY O’DONNELL,
BRAD HOMPE, KATHY SABEL,
CITY OF OSHKOSH POLICE
DEPARTMENT, and JOHN DOE,

Case No. 17-CV-1056-JPS

ORDER

Defendants.
Plaintiff Carlos C. McDaniels, who is incarcerated at Oshkosh
Correctional Institution (“Oshkosh”), proceeds in this matter pro se. He filed
a complaint alleging that the defendants violated his constitutional rights.
(Docket #1). This matter comes before the court on Plaintiff’s petition to
proceed without prepayment of the filing fee (in forma pauperis). (Docket
#3). Plaintiff has been assessed and paid an initial partial filing fee of $20.14.
See 28 U.S.C. § 1915(b)(1).
The court shall 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.
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900
(7th Cir. 1997). 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. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 110910 (7th Cir. 2003) (citations omitted).
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)). However, a complaint that
offers mere “labels and conclusions” or a “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’s allegations
“must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).

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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. Section 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)).
Plaintiff alleges that at some point in early June 2017, while
incarcerated at Oshkosh, Defendant Sgt. Pobranz (“Pobranz”) touched his
butt in a sexually suggestive manner during a pat down search. (Docket #1
at 6). Pobranz also whispered in Plaintiff’s ear at the same time, “[d]on’t I
know you from somewhere?” Id. Plaintiff’s unit was in lockdown at the
time so he could not call the prisoner complaint hotline. Id. He made an
interview request for Defendants Warden Judy Smith (“Smith”) and unit
manager Kathy Sabel (“Sabel”) but never received a response. Plaintiff also
wrote a letter to the Defendant City of Oshkosh Police Department which
went unanswered. Id. at 7.
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After the lockdown was over, Plaintiff spoke to other inmates who
had a similar experience with Pobranz. When Plaintiff was finally able to
call the prisoner complaint hotline, they told him the Pobranz issue was
being dealt with. In the next few weeks, Plaintiff filed a number of inmate
complaints concerning Pobranz’s actions. Id. Defendant Todd Gillingham
(“Gillingham”) rejected one of these out of hand as duplicative. Id. Another
complaint was dismissed by the John Doe complaint examiner. Id. Plaintiff
appealed that decision but Defendant Brad Hompe (“Hompe”) denied the
appeal, citing the ongoing investigation into Pobranz’s misconduct. Id. at 8.
Plaintiff alleges that Hompe’s decision was made in consultation with
Defendant deputy warden Jim Zanon (“Zanon”). Id. Plaintiff apparently
took an appeal of Hompe’s ruling, which was subsequently denied by
Defendant Cindy O’Donnell (“O’Donnell”). Id.
Plaintiff states that no one ever came to talk to him about the Pobranz
investigation. He further alleges that he was “moved off of K-Unit in
retaliation, due to he was /is the most vocal about what Pobranz has
done[.]” Id. Plaintiff’s requests for relief are wide-ranging, combining both
injunctive and monetary relief against nearly all Defendants. Id. at 9-12.
Plaintiff may proceed on a claim of cruel and unusual punishment
against Pobranz. “A prison guard carrying out a prison security measure
can violate the Eight Amendment in one of two ways: by maliciously
inflicting pain or injury, . . . or by performing some action that is intended
to humiliate the victim or gratify the assailant’s sexual desires[.]” Gillis v.
Pollard, 554 F. App’x 502, 505 (7th Cir. 2014) (citations and quotations
omitted). As alleged by Plaintiff, Pobranz’s groping and comment during
the pat down search are of the latter variety.

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Plaintiff has not stated viable claims against any other Defendant.
None were actually present when Pobranz acted or could have intervened
to stop him. Plaintiff merely complained to each Defendant after-the-fact.
As the Seventh Circuit explains,
[the prisoner’s] view that everyone who knows about a
prisoner’s problem must pay damages implies that he could
write letters to the Governor of Wisconsin and 999 other
public officials, demand that every one of those 1,000 officials
drop everything he or she is doing in order to investigate a
single prisoner’s claims, and then collect damages from all
1,000 recipients if the letter-writing campaign does not lead to
better medical care. That can’t be right. The Governor, and for
that matter the Superintendent of Prisons and the Warden of
each prison, is entitled to relegate to the prison’s medical staff
the provision of good medical care. . . . That is equally true for
an inmate complaint examiner.
Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (citation omitted). As
more particularly applicable to Plaintiff’s claim of cruel and unusual
punishment,
[The prisoner’s] argument on the merits is that anyone who
knows about a violation of the Constitution, and fails to cure
it, has violated the Constitution himself. That proposition
would not help him if it were correct, for he has lost on all of
his underlying constitutional theories. But it is not correct.
Only persons who cause or participate in the violations are
responsible. . . . Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation. A
guard who stands and watches while another guard beats a
prisoner violates the Constitution; a guard who rejects an
administrative complaint about a completed act of
misconduct does not.
George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (citations omitted).

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There are further problems for Plaintiff’s allegations against these
Defendants. The supervisors, Smith, Sabel, and Zanon, cannot be liable
simply by virtue of their positions; they must have known of Pobranz’s
misconduct and failed to stop it. Flournoy v. Schomig, 418 F. App’x 528, 531
(7th Cir. 2011). As to the complaint reviewers, Gillingham, Hompe,
O’Donnell, and John Doe, they could be liable if they simply “sent each
grievance to the shredder without reading it,” but Plaintiff’s allegations
confirm that they did not. Burks, 555 F.3d at 595. Finally, the City of Oshkosh
Police Department is not a suable entity. Averhart v. City of Chicago, 114 F.
App’x 246, 247 (7th Cir. 2004).
In sum, the court finds that the plaintiff may proceed on the
following claim pursuant to 28 U.S.C. § 1915A(b): Cruel and unusual
punishment applied to Plaintiff, in violation of the Eighth Amendment, by
Defendant Sgt. Pobranz.
The Court will also address Plaintiff’s pending motion for a
preliminary

injunction.

(Docket

#2).

Plaintiff’s

two-page

motion,

unaccompanied by any evidence, is woefully insufficient to establish the
elements required for issuance of an 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. Def. Council, Inc., 555 U.S. 7, 20
(2008)). Further, most relief Plaintiff seeks is the subject of discovery, not an
injunction. (Docket #2 at 2) (Plaintiff desires, inter alia, a list of other
Pobranz-related inmate complaints and investigation notes about the
Pobranz incident). The only non-discovery relief Plaintiff requests is a
psychological examination. Id. This action does not concern Plaintiff’s
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medical care, or lack thereof, and injunctive relief must relate to the claims
in the complaint. Karow v. Fuchs, No. 13-CV-798-JDP, 2015 WL 5704341 *5
(W.D. Wis. Sept. 29, 2015). Plaintiff’s motion will, therefore, be denied.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket #3) be and the same
is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants Warden Judy Smith,
Jim Zanon, Todd Gillingham, Cindy O’Donnell, Brad Hompe, Kathy Sabel,
John Doe, and City of Oshkosh Police Department be and the same are
hereby DISMISSED from this action;
IT IS FURTHER ORDERED that Plaintiff’s motion for a preliminary
injunction (Docket #2) be and the same is hereby DENIED;
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 are being electronically sent
today to the Wisconsin Department of Justice for service on Defendant Sgt.
Pobranz;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this court,
Defendant 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 the
prisoner 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
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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
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, the plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. If the
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.
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.

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Dated at Milwaukee, Wisconsin, this 5th day of September, 2017.
BY THE COURT:

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

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