Zibolsky v. Department of Corrections et al

Filing 8

ORDER signed by Judge Pamela Pepper on 10/26/2017. 2 Plaintiff's MOTION for leave to proceed without prepayment of the filing fee GRANTED. Defendants Department of Corrections and Edward Williams DISMISSED. Defendant Johnson to file responsive pleading within 60 days. Agency having custody of plaintiff to collect $348.47 balance of filing fee from his prison trust account under 28 U.S.C. §1915(b)(2). Parties shall not begin discovery until the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to John Wayne Zibolsky and Warden at Wisconsin Resource Center)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JOHN WAYNE ZIBOLSKY,
Plaintiff,
v.

Case No. 17-cv-1196-pp

DEPARTMENT OF CORRECTIONS,
SGT. JOHNSON, and
EDWARD WILLIAMS,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The Prison Litigation Reform Act (PLRA) applies to this case because the
plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. Under
that law, the court must screen the plaintiff’s complaint to determine whether
the plaintiff states claims with which he may proceed. In addition to filing a
complaint, the plaintiff filed a motion for leave to proceed without prepayment
of the filing fee. Dkt. No. 2. This decision will screen the complaint and resolve
the plaintiff’s motion.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
The PLRA allows a court to give an incarcerated plaintiff the ability to

proceed with his lawsuit without prepaying the case filing fee, as long as he
meets certain conditions. One of those conditions is that the plaintiff must pay
an initial partial filing fee. 28 U.S.C. §1915(b).

On September 5, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $1.13 by September 26, 2017. Dkt. No. 4. The plaintiff paid
the fee on September 21, 2017. The court will grant the plaintiff’s motion to
proceed without prepayment of the filing fee. The court will order the plaintiff to
pay the remainder of the filing fee over time in the manner explained at the end
of this decision.
II.

Screening the Plaintiff’s Complaint
The law requires the court to screen complaints brought by prisoners

seeking relief against a governmental entity or officer or employee of a
governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint
if the plaintiff raises 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. 28 U.S.C. §1915A(b).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To proceed 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 defendant was acting under color of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
2

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 gives a pro se plaintiff’s
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)).
A.

The Plaintiff’s Allegations

The plaintiff alleges that, in the summer of 2016, he and defendant
Edward Williams became cellmates at Oshkosh Correctional Institution. Dkt.
No. 1 at 2. The plaintiff explains that Williams refused to let the plaintiff open
the window, even when it was eighty degrees outside. Id. According to the
plaintiff, when he tried to open the window, Williams would threaten to
physically harm him. Id. The plaintiff asserts that at least four or five times, he
informed defendant Sergeant Johnson about Williams’ threats. Id. He states
that Johnson told the plaintiff that he would be moved to another cell once one
opened up. Id.
The plaintiff states that, on October 22, 2016, he opened the window in
his cell. Id. at 2. According to the plaintiff, Williams entered the cell shortly
thereafter and shut the window. Id. The plaintiff asserts that Williams
threatened him and then called him a “honkey.” Id. The plaintiff states that he
called Williams a “nigger.” Id. Williams told the plaintiff to get off the bunk, but
the plaintiff states that Williams punched him before he could get off. Id.
According to the plaintiff, Williams pulled him off the bunk by his leg, which
resulted in his head hitting the ground. Id. The plaintiff states that he suffered
3

a laceration to his head that required five stitches, and three broken ribs,
which lacerated his kidneys. Id.
B.

The Court’s Analysis

The plaintiff has named the Wisconsin Department of Corrections, Sgt.
Johnson and inmate Williams as defendants.
The court will dismiss the Wisconsin Department of Corrections as a
defendant. The DOC is a state agency, which means it is considered an “arm[]
of the state.” Kroll v. Bd. of Trustees of Univ. of Ill., 934 F.2d 904, 907 (7th
Cir.1991). It, like the state of Wisconsin, enjoys immunity under the Eleventh
Amendment from civil rights lawsuits filed by citizens. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 66-67 (1989).
The court also dismiss Williams as a defendant. To proceed under §1983,
a plaintiff must allege that the defendant was acting under the color of state
law—in other words, that the defendant was a state official or employee.
Williams is an inmate in the custody of the state; he was not acting under the
color of state law, so the plaintiff cannot sue him under §1983.
This leaves defendant Johnson. To state a failure-to-protect claim under
the Eighth Amendment, the plaintiff must allege facts from which the court can
conclude that the plaintiff faced a substantial risk of serious harm, and that
Johnson knew of and disregarded that risk. Farmer v. Brennan, 511 U.S. 825,
834, 837 (1994); Santiago v. Walls, 599 F.3d 749, 756 (7th Cir.2010). The
court finds that the plaintiff has stated sufficient facts to support a failure-toprotect claim against Johnson. He alleges that Williams threatened to harm
4

him on several occasions, and that he relayed those threats to Johnson. Other
than telling the defendant that he would move the plaintiff to another cell when
one became available, it appears—based solely on the facts the plaintiff has
alleged—that Johnson did not do anything to protect the plaintiff from
Williams. At this early stage, the court will allow the plaintiff to proceed on a
failure-to-protect claim against Johnson.
III.

Conclusion
The court GRANTS the plaintiff's motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court DISMISSES the Department of Corrections and Edward
Williams as defendants.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS the clerk’s office to electronically
send copies of the plaintiff’s complaint and this order to the Wisconsin
Department of Justice for service on defendant Sergeant Johnson.
Under the informal service agreement between the Wisconsin
Department of Justice and this court, the court ORDERS defendant Sergeant
Johnson to file a responsive pleading to the complaint within sixty days of
receiving electronic notice of this order.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $348.47 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
5

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 agency shall clearly identify the payments by the case name
and number. 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.
The court will mail a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS that the parties shall not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that the plaintiff 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
The court advises the plaintiff that failure to timely file pleadings and
other documents by the deadlines the court sets could result in his case being
dismissed for failure to prosecute. The parties must notify the Clerk of Court of
any change of address. Failure to do so could result in orders or other

6

information not being timely delivered, thus affecting the legal rights of the
parties.
Dated in Milwaukee, Wisconsin this 26th day of October, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

7