Bergeron Davila v. Kallie et al

Filing 7

SCREENING ORDER signed by Judge J.P. Stadtmueller on 3/8/2018. 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendant Jaclyn Kallie DISMISSED from action. Plaintiff PERMITTED to proceed against De fendants on claim of deliberate indifference to serious medical needs in violation of the Eighth Amendment. U.S. Marshals Service to SERVE a copy of Plaintiff's Complaint and this Order on Defendants, who shall FILE a responsive pleading. Agency having custody of Plaintiff to COLLECT the balance of the filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Raymond J. Bergeron Davila and Warden at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RAYMOND J. BERGERON DAVILA,
Plaintiff,

v.

JACLYN KALLIE, MELISSA
MORAN, STEVEN CLOPE,
ANTHONY BOSE, ROBERT
MASTRONARDI, MR. ECKBLAD,
and JOHN DOES,

Case No. 17-CV-1756-JPS

ORDER

Defendants.
Plaintiff Raymond J. Bergeron Davila, who is incarcerated at
Waupun Correctional Institution, 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
#2). Due to Plaintiff’s indigence, the Court waived payment of an initial
partial filing fee in his case. (Docket #6). The Court proceeds to screen the
complaint.
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. Vill.
of N. 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 on November 21, 2017, he was incarcerated at
the Racine County Jail. (Docket #1 at 1). He was placed into a restraint chair
due to his threats of engaging in self-harming conduct. Id. He then began to
“bite himself drawing blood.” Id. Plaintiff states that Defendants Melissa
Moran, Steven Clope, Mr. Eckblad, Robert Mastronardi, and two John Doe
correctional officers observed this behavior during the first shift on
November 21, but did not physically intervene to stop Plaintiff from biting
himself. Id. at 2. Plaintiff further alleges that Defendants Anthony Bose and
seven other John Doe correctional officers did the same as Plaintiff’s biting
continued into the second shift. Id. at 2-3. Also during this time, a John Doe
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member of the Jail’s mental health treatment staff refused to treat Plaintiff.
Id. at 4.
Plaintiff may proceed against the above-named Defendants for their
deliberate indifference to his serious medical needs, in violation of the
Eighth Amendment. Claims for deliberate indifferent to an inmate’s suicide
risk are legion in federal courts, and so extensive case law has developed to
interpret them. The basic formulation of the claim involves an objective and
a subjective component. Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006).
First, Plaintiff must show that the harm (or potential harm) was objectively,
sufficiently serious and a substantial risk to his health. Id.; Farmer v.
Brennan, 511 U.S. 825, 832 (1994). “It goes without saying that ‘suicide is a
serious harm.’” Sanville v. McCaughtry, 266 F.3d 724, 733 (7th Cir. 2001)
(quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)).
While it is not clear that Plaintiff’s biting could have actually led to his
death, it was nevertheless a serious self-harming action.1
Second, Plaintiff must establish that Defendants displayed deliberate
indifference to his risk of suicide. Collins, 462 F.3d at 761; Sanville, 266 F.3d
at 733. This, in turn, requires a dual showing that Defendants (1)
subjectively knew that Plaintiff was at substantial risk of committing
suicide and (2) were deliberately indifferent to that risk. Matos ex rel. Matos
v. O’Sullivan, 335 F.3d 553, 556 (7th Cir. 2003). Plaintiff’s allegations, viewed

In a prior case concerning nearly identical allegations, it was suggested
that Plaintiff’s biting activity consisting of biting the inside of his mouth and
spitting blood around his cell. See Raymond J. Bergeron Davila v. Barbara A. Teeling,
17-CV-337-JPS (E.D. Wis.), (Docket #102 at 2). As the Court observed in that case,
this does not sound life-threatening, but the Court leaves it to Defendants to make
that argument if appropriate. At screening, the Court is bound to construe
Plaintiff’s allegations in his favor.
1

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generously, can support each showing. Plaintiff alleges that each defendant
knew he was biting himself severely, and that they did nothing to stop it.
The remainder of Plaintiff’s allegations are directed at Defendant
Jaclyn Kallie. (Docket #1 at 4-7). Kallie is an attorney, and she and her firm
of Bascom, Budish & Ceman, S.C., have served as defense counsel for the
Jail and its staff in other civil actions brought against them by Plaintiff. See,
e.g., Raymond J. Bergeron Davila v. Barbara A. Teeling, 17-CV-337-JPS (E.D.
Wis.). Plaintiff alleges that while litigating his other cases, he informed
Kallie that he would engage in self-harming behavior on November 21, and
that she failed to inform Jail staff about the threat. (Docket #1 at 5-6). He
maintains that like the Jail staff, she too was deliberately indifferent to his
risk of suicide. Id. at 6-7.
Plaintiff may not proceed on a claim against Kallie for numerous
reasons, but only two need be mentioned. First, Kallie is a private attorney,
not a state actor, and is thus not amenable to suit under Section 1983. Hansen
v. Ahlgrimm, 520 F.3d 768, 770 (7th Cir. 1975). Second, even assuming this
were not the case, there is no indication that Kallie had any role in Plaintiff’s
healthcare at the Jail. Defendants alone had legal custody of Plaintiff and
could direct his care in accordance with his medical needs and their
correctional prerogatives. Indeed, it is likely that only Defendants’
superiors within the Racine County Sheriff’s Office (or the county
government) could order them to do anything with respect to Plaintiff’s
care. Simply complaining to Kallie does not serve to rope her into an alleged

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constitutional violation. See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir.
2009); George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007).2
In sum, the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Deliberate indifference to Plaintiff’s
serious medical needs, namely his risk of suicide, on November 21, 2017, in
violation of the Eighth Amendment, against Defendants Melissa Moran,
Steven Clope, Anthony Bose, Robert Mastronardi, Mr. Eckblad, and John
Does 1 – 10.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IT IS FURTHER ORDERED that Defendant Jaclyn Kallie be and the
same is hereby DISMISSED from this action;
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the complaint and this order upon the defendants pursuant
to Federal Rule of Civil Procedure 4. Plaintiff is advised that Congress
requires the U.S. Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages
is $8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§
0.114(a)(2), (a)(3). Although Congress requires the court to order service by
the U.S. Marshals Service precisely because in forma pauperis plaintiffs are

Plaintiff also mentions a concern about preserving video evidence in
relation to his allegations against Kallie. (Docket #1 at 4-5). Evidence preservation,
or the lack thereof, is not a stand-alone constitutional claim. Thus, these allegations
provide no basis for maintaining Kallie as a defendant in the case.
2

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indigent, it has not made any provision for these fees to be waived either
by the court or by the U.S. Marshals Service;
IT IS FURTHER ORDERED that Defendants shall file a responsive
pleading to the complaint;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the balance of the
filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’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 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 Plaintiff is confined; and
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. 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

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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.
Dated at Milwaukee, Wisconsin, this 8th day of March, 2018.
BY THE COURT:

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

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