Pietila v. Sonntag et al

Filing 15

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 3/5/2018. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; agency having custody of plaintiff to collect $350 balance of filing fee from plainti ff's prison trust account under 28 USC §1915(b)(2). 11 Plaintiff's MOTION to Appoint Counsel DENIED as moot. Case DISMISSED under 28 USC §§1915(e)(2)(B) and 1915A(b)(1) for failure to state claim. Clerk of Court to document that plaintiff has incurred a "strike" under 28 USC §1915(g). (cc: all counsel, via mail to Michael Pietila and Warden at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MICHAEL SCOTT PIETILA,
Plaintiff,
v.

Case No. 17-cv-1616-WED-PP

CO SONNTAG, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2),
SCREENING AND DISMISSING THE COMPLAINT (DKT. NO. 1), AND
DENYING MOTION TO APPOINT COUNSEL AS MOOT (DKT. NO. 11)
______________________________________________________________________________
This case currently is assigned to Magistrate Judge William E. Duffin.
Although the plaintiff has consented to Judge Duffin hearing and deciding the
case, the defendants have not yet had the opportunity to decide whether to
consent, because until now, the court had not screened the complaint and
decided whether it should be served on the defendants. Because both parties
have not yet consented to the magistrate judge hearing the case, the district
court judge will screen the complaint.
I.

THE PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE

The Prison Litigation Reform Act (“PLRA”) applies to this case because
the plaintiff was incarcerated when he filed the complaint. 28 U.S.C. §1915.
The PLRA allows an incarcerated plaintiff to proceed with a case in federal
court without pre-paying the full civil case filing fee, as long as he pays an
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initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial
partial filing fee, he can pay the balance of the $350 filing fee over time,
through deductions from his prisoner account. Id.
On December 1, 2017, Judge Duffin assessed an initial partial filing fee
of $0.11. Dkt. No. 9. The plaintiff responded by sending the court a letter,
explaining that he cannot pay this amount because the Department of
Corrections takes all of his money to pay for court ordered restitution. Dkt. No.
14. He states that he has not made any canteen purchases or otherwise spent
his money. Id.
Section 1915(b)(4) states that “[i]n no event shall a prisoner be prohibited
from bringing a civil action or appealing a civil or criminal judgment for the
reason that the prisoner has no assets and no means by which to pay the
initial partial filing fee.” “Section 1915(b)(4) comes into play only when ‘the
prisoner has no assets and no means by which to pay the initial partial filing
fee.’” Lindell v. McCaughtry, No. 01-C-209-C, 2004 WL 225074, at *1 (W.D.
Wis. Jan. 23, 2004). “A prisoner with periodic income has ‘means’ even when
he lacks ‘assets.’” Id.
The court has reviewed the plaintiff’s trust fund activity statement. Dkt.
No. 8. Although he has average monthly deposits of $0.46, the plaintiff does
not have access to this money, because the entire amount is automatically
withdrawn each month to pay for restitution, medical co-pay and legal loans.
See id. The court concludes that the plaintiff has neither the assets nor the

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means to pay the initial partial filing fee. The court will waive the initial partial
filing fee and will allow the plaintiff to proceed without prepaying it.
II.

SCREENING OF THE PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The PLRA requires federal courts 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 may dismiss a case, or
part of it, if the claims alleged are “frivolous or malicious,” fail to state a claim
upon which relief may be granted, or seek monetary relief from a defendant
who is immune from such relief. 28 U.S.C. §1915(e)(2)(B).
To state a claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “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)). “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Allegations must “raise a right to relief above the speculative level.”

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Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis in Twombly to determine
whether a complaint states a claim. Id. at 679. First, the court determines
whether the plaintiff’s legal conclusions are supported by factual allegations.
Id. Legal conclusions not supported by facts “are not entitled to the assumption
of truth.” Id. Second, the court determines whether the well-pleaded factual
allegations “plausibly give rise to an entitlement to relief.” Id. The court gives
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)).
B.

Facts Alleged in the Complaint

The plaintiff is incarcerated at the Waupun Correctional Institution
(“WCI”). Dkt. No. 1. The defendants are Correctional Officer Sonntag and
Inmate Complaint Examiner (ICE) Tanya Moon Id.
On November 3, 2017, the plaintiff was in North Cell hall in
“Transition/Program Segregation.” Id. at 2. Inmate Darren Gruenberg “spent
the entire recreation period calling [the plaintiff] retarded, threating [him],
calling [him] a coward because [he] didn’t want to fight and ma[king] fun of
[him] because [his] mother is dead.” Id. at 2-3. Sonntag, who was the
supervising correctional officer, “questioned” Gruenberg about his obnoxious
behavior. Id. at 3. Sonntag allowed inmate Gruenberg to return to his cell. Id.

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A little while later, the inmates were released from the recreation period.
Id. The plaintiff was headed to “B-tier” when inmate Gruenberg pulled the
plaintiff into his cell and assaulted him. Id. The plaintiff had scratches on his
neck, as well as injuries on his ribs and nose. Id. The plaintiff asserts that
“this”—it is not clear whether he means Gruenberg’s actions, or Sonntag’s—
was a “conspiratorial retaliatory action from the numerous PREA complaints”1
the plaintiff had been making. Id. He opines that Gruenberg “was put up to
this” by an unknown employee, for several reasons. First, the plaintiff explains
that he and inmate Gruenberg had “never had bad words with each other,” and
had known each other since 2005. He also indicates that Gruenberg had been
helping him file three other lawsuits. Id. at 3-4. He alleges that the night before
the incident, Gruenberg started “acting out of character.” Id. at 4. The plaintiff
did not make note of the behavior until after the assault. Id. The plaintiff also
notes that another officer was “joking” with Sonntag and “pretending to scream
at him . . . so they were aware.” Id.
Although it is not entirely clear, it appears that the plaintiff may have
been placed in Temporary Lock Up (TLU) after the incident with inmate
Gruenberg. Id. The plaintiff states, “I was told they would keep it ‘in house’
because as they TLU’d me I was worried about a bail jumping charge for a
pending case.” Id. He says that, astoundingly, he was released from TLU thirtyfour hours later, which “led [him] to believe that [he was] in imminent danger.”

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Prison Rape Elimination Act.
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Id. The plaintiff states that Moon “found a way to deny [him] [] exhaustion of []
remedies by confusing [him] with her ICE return memo.” Id.
The plaintiff asks for an immediate transfer to a different institution, and
for money damages. Id. at 5.
C.

Legal Analysis of Alleged Facts

To state a claim under 42 U.S.C. §1983, the 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. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)).
1.

ICE Examiner Moon

To be liable under §1983, a defendant must have been personally
involved in the constitutional deprivation. Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995). “An official satisfies the personal responsibility
requirement of section 1983 . . . if the conduct causing the constitutional
deprivation occurs at [his] direction or with [his] knowledge and consent.” Id.
(quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982)). He “must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye.”
Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988)).
A complaint examiner is not liable under §1983 for simply dismissing an
inmate’s complaint. Burks v. Rasmisch, 555 F.3d 592, 595-96 (7th Cir. 2009).
It is part of a complaint examiner’s duty to review inmate complaints and to
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dismiss untimely or unfounded complaints. Id. at 595. To be liable under
§1983, the complaint examiner must refuse to do her job, or deprive a prisoner
of the protection provided by the grievance process. Id. For example, a
complaint examiner might be liable under §1983 if she refused to review an
inmate’s complaint, or “routinely sen[t] grievances to the shredder without
reading them.” Id.
That is not the case with regard to defendant Moon. The plaintiff alleges
that Moon’s “ICE return memo” was “confusing;” he implies that she
deliberately made the memo confusing, so that he could not exhaust his
administrative remedies. Moon did her job—she reviewed the plaintiff’s
complaint, and issued a “return memo.” The fact that the plaintiff did not
understand that memo, and thus perhaps did not exhaust his administrative
remedies, does not make Moon liable for the alleged retaliation by Sonntag.
Because the plaintiff has not alleged sufficient facts to state a §1983 claim
against Moon, the court will dismiss Moon as a defendant.
2.

CO Sonntag
a.

First Amendment Retaliation

To state a claim for retaliation, the plaintiff must allege that: (1) he
engaged in 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
defendants’ decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d
541, 553 (7th Cir. 2009).
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The plaintiff states that an “unknown employee” retaliated against him
by telling inmate Gruenberg to attack him for the numerous PREA complaints
he had been filing. Dkt. No. 1 at 3. The plaintiff does not identify the “unknown
employee” as a defendant, nor does he list any other John Doe defendants. The
court will not allow the plaintiff to proceed on a First Amendment retaliation
claim, because he has not identified anyone who retaliated against him.
b.

Eighth Amendment Failure to Protect

The Eighth Amendment's Cruel and Unusual Punishment Clause
requires prison staff to “take reasonable measures to guarantee the safety of
the inmates.” Farmer v. Brennan, 511 U.S. 825, 832, (1994) (quoting Hudson
v. Palmer, 468 U.S. 517, 526–27 (1984)). To state a failure to protect claim, a
plaintiff must allege that (1) “he is incarcerated under conditions posing a
substantial risk of serious harm,” and (2) defendants acted with “deliberate
indifference” to that risk. Id. at 834. A failure to protect claim requires
particularized harm that is “almost certain” or “very likely” to occur. See Wilson
v. Ryker, 451 F. App'x 588, 589 (7th Cir. 2011). “A generalized risk of violence
is not enough, for prisons are inherently dangerous places.” Id.
The plaintiff states that Sonntag failed to protect him from Gruenberg’s
assault, because although Sonntag had questioned inmate Gruenberg about
Gruenberg’s obnoxious behavior (yelling at the plaintiff and making fun of him)
during recreation period, Sonntag nonetheless allowed Gruenberg to return to
his cell. This allegation is not sufficient to state a claim for failure to protect.
The plaintiff himself states that he “made no note” of Gruenberg’s strange
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behavior until after Gruenberg had assaulted him. He states that he and
Gruenberg had been working together to file his three other complaints and
that they “never had any bad words with each other.” The plaintiff indicates
that he was surprised by Gruenberg’s attack. There is no indication that the
plaintiff told Sonntag that he was worried about, or felt threatened by,
Gruenberg—probably because, at the time, he wasn’t worried, and didn’t feel
threatened. Sonntag may have noticed Gruenberg’s obnoxious behavior and
questioned him about it on the day of the assault, but that does not
demonstrate that Sonntag knew or had reason to know that Gruenberg posed a
physical threat to the plaintiff. Even accepting all of the plaintiff’s allegations as
true, it appears to the court that everyone—including the plaintiff and
Sonntag—was surprised by Gruenberg’s attack. Sonntag could not protect the
plaintiff from a threat that Sonntag (and even the plaintiff) did not know
existed.
Because the plaintiff has not alleged sufficient facts to demonstrate that
Sonntag failed to intervene, the court will dismiss Sonntag.
IV. CONCLUSION
The plaintiff has not stated sufficient facts to prove any constitutional
claims against Sonntag or Moon, and the court must dismiss the case. Because
the court is dismissing the case, it will deny the plaintiff’s motion to appoint
counsel as moot.
The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2. The court ORDERS the agency having
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custody of the plaintiff to collect from the plaintiff's prison trust account the
$350.00 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 forward 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. The court will send a copy of this
order to the officer in charge of the agency where the plaintiff is confined. If the
plaintiff is transferred to another institution--county, state or federal--the
transferring institution shall forward a copy of this order, along with the
plaintiff's remaining balance, to the receiving institution.
The

court

ORDERS

that

this

case

is

DISMISSED

under

28

U.S.C. §§1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim. The clerk will
enter judgment accordingly.
The court ORDERS that the clerk document that this inmate has
incurred a “strike” under 28 U.S.C. §1915(g).
The court DENIES the plaintiff’s motion for appointment of counsel as
moot. Dkt. No. 11.
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 Fed. R. of App. P. 3, 4. This court may extend this deadline if a party timely

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requests an extension and shows good cause or excusable neglect for not being
able to meet the 30-day deadline. See Fed. R. App. P. 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). A party must file
any motion under Federal Rule of Civil Procedure 59(e) within 28 days of the
entry of judgment. The court cannot extend this deadline. See Fed. R. Civ. P.
6(b)(2). A party must file any motion under Federal Rule of Civil Procedure
60(b) within a reasonable time, generally no more than one year after the entry
of the judgment. The court cannot extend this deadline. See Fed. R. Civ. P.
6(b)(2).
The court advises parties to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
Dated in Milwaukee, Wisconsin this 5th day of March, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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