Lobley v. Yang et al

Filing 19

ORDER signed by Judge Pamela Pepper on 1/8/2019. 8 Plaintiff's motion for extension of time DENIED as moot. 10 Plaintiff's motion for leave to proceed without prepaying filing fee GRANTED; agency having custody of plaintiff to collect & #036;343.51 balance of filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). 14 18 Plaintiff's additional motions for leave to proceed without prepaying filing fee DENIED as moot. Defendants Kind, Schueler, Cush ing and Eckstein DISMISSED. Defendant Yang to file responsive pleading within 60 days. Parties may not begin discovery until the court issues scheduling order setting deadlines for discovery and dispositive motions. Case RETURNED to Judge Joseph for further proceedings. (cc: all counsel, via mail to Deangelo Lobley and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DEANGELO D. LOBLEY,
Plaintiff,
v.

Case No. 18-cv-812-pp

CO YANG, CPT. CUSHING,
JOHN KIND, WARDEN SCOTT ECKSTEIN,
and STEVEN SCHUELER,
Defendants.
______________________________________________________________________________
ORDER DENYING AS MOOT PLAINTIFF’S MOTION FOR EXTENSION OF
TIME (DKT. NO. 8), GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 10),
DENYING AS MOOT PLAINTIFF’S SECOND AND THIRD MOTIONS FOR
LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT.
NOS. 14, 18), AND SCREENING COMPLAINT UNDER 28 U.S.C. §1915A
______________________________________________________________________________
The plaintiff, a state prisoner who is representing himself, filed a
complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil
rights. Dkt. No. 1. The court received the complaint on May 25, 2018; four days
later, the court received a partial inmate trust account statement (dkt. no. 3)
and an unsigned Consent to Proceed Before a U.S. Magistrate Judge form (dkt.
no. 5). On June 19, 2018, the court received a motion from the plaintiff, asking
the court to send him a new consent form and to give him more time to file his
inmate trust account. Dkt. No. 8. The court received the plaintiff’s trust
account statement on July 5, 2018, dkt. no. 11, and received a signed consent
form on July 18, 2018, dkt. no. 17. So the court will deny as moot the motion
to extend time. The court also received two more motions for leave to proceed
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without prepaying the filing fee—one on July 10 and one on July 18, 2018.
Dkt. Nos. 14, 18. Those motions weren’t necessary; the plaintiff already had
filed his motion to proceed without prepaying the filing fee. The court will deny
those motions as moot.
This decision resolves the plaintiff’s motion for leave to proceed without
prepayment of the filing fee, dkt. no. 10, and screens his complaint, dkt. no. 1.
The case is assigned to Magistrate Judge Nancy Joseph. The defendants have
not yet had the opportunity to decide whether to consent to magistrate judge
jurisdiction because, until now, the court has 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 clerk’s
office has referred the case to this district court judge to screen the complaint
and decide whether it should be served on any of the defendants. The court will
explain which claims the plaintiff has stated against which defendants, and
then it will return the case to Judge Joseph for further proceedings.
I.

Motion for Leave to Proceed without Prepayment of the Filing Fee
(Dkt. No. 10)
The Prison Litigation Reform Act applies to this case because the plaintiff

was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows
a court to give an incarcerated plaintiff the ability to proceed with his case
without prepaying the civil case filing fee, if he meets certain conditions. One of
those conditions is that the plaintiff pay an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial filing fee, the court may

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allow the plaintiff to pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
On July 11, 2018, the court ordered the plaintiff to pay an initial partial
filing fee of $6.49. Dkt. No. 16. The court received that fee on July 30, 2018.
The court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. He must pay the remainder of the filing fee over
time in the manner explained at the end of this order.
II.

Screening the Plaintiff’s Complaint
A.

Federal Screening Standard

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 state a claim under 42 U.S.C. §1983, a plaintiff must allege that 1)
someone deprived him of a right secured by the Constitution or laws of the
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United States, and 2) whoever deprived him of that right was acting under color
of state law. Buchanan-Moore v. Cty. 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 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)).
B.

The Plaintiff’s Allegations

The plaintiff is incarcerated at the Green Bay Correctional Institution. He
alleges that on April 28, 2017, he “was coming back from a call line pass from
Islamic Talim service, with another inmate name[d] Michael Moffett[.]” Dkt. No.
1 at 3. As the plaintiff returned to the cell house with his pass, he went to
return his canceled pass by placing it in the wire basket in the “officers’ cage,”
as required. Id. The plaintiff alleges that he reached into the cage and, as he
dropped his pass into the basket, defendant Officer Yang “slammed plaintiff’s
arm forcefully, causing his arm to hit the officer’s cage, leaving a large vicious
bruise on plaintiff’s arm.” Id. The plaintiff states that he asked Yang “why did
he hit him, slamming his arm against the cage, and yelling don’t put your
fucking arm inside here no more.” Id.
The plaintiff alleges that Sergeant Lannoye (not a defendant) then told
him and inmate Moffett, who was standing next to the plaintiff, to “go lock-in.”
Id. The plaintiff and Moffett allegedly told Lannoye that they would not lock in

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until they spoke to a supervisor. Id. The plaintiff alleges that Lannoye directed
them to sit in the chairs nearby, while he contacted a supervisor. Id.
Several minutes later, defendant Lieutenant Cushing allegedly arrived to
take the plaintiff’s and Moffett’s statements. Id. at 4. Cushing told the inmates
that the camera would be looked at, and to “lock in.” Id.
The plaintiff allegedly returned to his cell and about five minutes later,
an officer arrived and photographed his arm. Id. The plaintiff states that he was
ultimately placed in “segregation under TLU-status.” Id.
After the incident, the plaintiff filed an inmate complaint. Id. He states
that the complaint investigator dismissed the complaint “because the
allegations in the complaint had already been previously brought to the
attention of the security supervisory staff, and are already under review.” Id.
The plaintiff alleges that he filed an appeal and the “office secretary” ultimately
dismissed the appeal. Id. at 4-5.
The plaintiff claims that Yang assaulted him without cause in violation of
the Eighth Amendment to the Constitution and Wis. Stat. §302.08. Id. at 5. He
also claims that Cushing violated his Fourth, Fifth and Eighth Amendment
rights “by failing to ensure that the officers for this situation and supervisors
were properly trained.” Id.
For relief, the plaintiff seeks compensatory damages, punitive damages,
and a restraining order barring Yang from working in the same area as the
plaintiff. Id. at 5-6.

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C.

The Court’s Analysis

The intentional use of excessive force by prison guards against an inmate
without penological justification constitutes cruel and unusual punishment.
See Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010); DeWalt v. Carter, 224 F.3d
607, 619 (7th Cir. 2000). When prison officials are accused of using excessive
force against an inmate, “[t]he claimant must show that officials applied force
‘maliciously and sadistically for the very purpose of causing harm.’” Farmer v.
Brennan, 511 U.S. 825, 835 (1994) (quoting Hudson v. McMillian, 503 U.S.1, 6
(1992)).
The plaintiff’s allegations that Yang forcefully slammed his arm without
cause, leaving a vicious bruise, satisfy this standard. See Caffey v. Maue, 679
Fed. Appx. 487, 492 (7th Cir. 2017). The plaintiff may proceed on an Eighth
Amendment claim against Yang.
Wisconsin Statute §302.08 provides in relevant part that “all prison
officials shall uniformly treat the inmates with kindness. There shall be no
corporal or other painful and unusual punishment inflicted upon inmates.” As
far as the court can tell, however, this provision does not create a private right
of action. It is an enabling statute authorizing various Wisconsin Department
of Corrections regulations, which do not themselves give rise to a private cause
of action. See Gruenberg v. Bittle, 2014 WL 3736497, at *2 (W.D. Wis. 2014)
(citations omitted). The court will not allow the plaintiff to proceed on a claim
under §302.08.

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Nor will the court allow the plaintiff to proceed against Cushing, because
he does not allege that Cushing had any personal involvement in the excessive
force allegations and because there is no supervisory liability under §1983.
Section 1983 creates a cause of action based on personal liability and
predicated upon fault; “to be liable under [Section] 1983, an individual
defendant must have caused or participated in a constitutional deprivation.”
Pepper v. Vill. of Oak Park, 430 F.3d 805, 810 (7th Cir. 2005) (citations
omitted). The respondeat superior doctrine—liability merely because one is a
supervisor—does not apply to Section 1983 actions. See, e.g., Kinslow v.
Pullara, 538 F.3d 687, 692 (7th Cir. 2008). In order for a supervisor to be liable
under §1983, the “supervisor[] must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what [he] might see. [He]
must in other words act either knowingly or with deliberate, reckless
indifference.” Backes v. Vill. of Peoria Heights, Ill., 662 F.3d 866, 870 (7th Cir.
2011). The plaintiff has not alleged that Cushing knew about what Yang was
going to do and facilitated it, or that he approved of or condoned it.
Finally, the court will dismiss the remaining defendants—John Kind,
Scott Eckstein and Steven Schueler—because the plaintiff has not made any
allegations against them.
III.

CONCLUSION
The court DENIES AS MOOT the plaintiff’s motion for extension of time.

Dkt. No. 8

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The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 10.
The court DENIES as moot the plaintiff’s second and third motions for
leave to proceed without prepayment of the filing fee. Dkt. Nos. 14, 18
The court DISMISSES defendants Cushing, Kind, Eckstein and
Schueler.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, copies of the plaintiff’s complaint and this order will
be electronically transmitted to the Wisconsin Department of Justice for service
on defendant CO Yang.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court ORDERS defendant Yang 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 $343.51 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 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 agency shall clearly identify the payments by the case name and number.
If the plaintiff transfers to another county, state or federal institution, the

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transferring institution shall forward a copy of this order, along with the
plaintiff's remaining balance, to the receiving institution.
The court will send a copy of this order to the officer in charge of the
agency where the plaintiff is confined.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under 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.1 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 JUDGE’S CHAMBERS.
It will only delay the processing of the case.
The court advises plaintiff that, if he fails to file documents or take other
required actions by the deadlines the court sets, the court may dismiss the
case based on his failure to prosecute. The parties must notify the clerk of
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.
1

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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.
The court RETURNS this case to Magistrate Judge Nancy Joseph for
further proceedings.
Dated in Milwaukee, Wisconsin this 8th day of January, 2019.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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