Shaw v. Smith et al
SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 3/31/2021. CASE DISMISSED with prejudice under 28 U.S.C. § 1915A(b)(1) because the complaint fails to state a claim. Clerk of Court to DOCUMENT that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). See Order. (cc: all counsel, via mail to Terrance J Shaw at Racine Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE J. SHAW,
Case No. 20-CV-797-JPS
JUDY SMITH, DR. ROTONDI, DR.
ROEHRICH, DR. STOLARSKI, and
Plaintiff Terrance J. Shaw, an inmate confined at Racine Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983 alleging that his
rights under the Eighth Amendment were violated. Plaintiff has paid the
full filing fee. This order screens Plaintiff’s complaint.
FEDERAL SCREENING STANDARD
Under the Prison Litigation Reform Act, the Court must screen
complaints brought by prisoners seeking relief from a governmental entity
or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint if the prisoner 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).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). To state a claim, a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true,
to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. 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.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
the laws of the United States, and that whoever deprived him of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
Plaintiff is a Vietnam Veteran, who has been diagnosed with Post-
Traumatic Stress Disorder (“PTSD”) from his combat experience. (Docket
#1 at 1). Plaintiff has Vietnam flashbacks, which can be triggered by sudden
and unexpected loud noises. (Id. at 2). Plaintiff was an inmate at Oshkosh
Correctional Institution (“OCI”) during the relevant events. In May 2013,
OCI began using a sound cannon device, at the direction of the Department
of Natural Resources, to deter seagulls from nesting on OCI property.
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(Docket #1-1 at 5). The seagulls are a federally protected bird, and OCI
needed to use non-fatal methods to deter the birds. (Id.)
On May 3, 2013, Plaintiff was walking to the prison library when the
sound cannon device was used. (Docket #1 at 2). The sound cannon
triggered a flashback, which caused Plaintiff “a serious episode of anxiety
with fits of crying, re-experiencing sights of dead and wounded comrades
and being under rocket and mortar attacks.” (Id.) Later that day, Plaintiff
filed a Psychological Service Request (“PSR”) for treatment regarding his
flashback and an Inmate Complaint (“IC”) regarding OCI’s use of the
sound cannon. (Id.) OCI’s Psychological Services Unit (“PSU”) supervisor,
Dr. Stolarski, responded to Plaintiff and explained the sound. (Docket #1-1
at 5). Plaintiff also told the PSU that he would speak to his psychologist, Dr.
Roehrich, about his flashback at their next session. (Id.)
The next year, on March 20, 2014, Plaintiff was walking to the library
when the sound cannon went off and caused Plaintiff to have another
flashback and anxiety episode. (Docket #1 at 2). Later that day, Plaintiff filed
an IC requesting that OCI stop using the sound cannon. (Docket #1-1 at 9).
The library staff contacted the PSU and had Dr. Rotondi talk to Plaintiff
about his flashback. (Id. at 9, 14). Plaintiff noted that it helped him to be seen
by and to talk to a trained professional. (Id.) In response to Plaintiff’s IC,
OCI employee Gary Ankarlo wrote that he would follow up with PSU staff
regarding any treatment for Plaintiff together with transfer options that
may be available. (Id. at 11). Plaintiff appealed the IC decision and stated
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that he objected to being transferred and would consider it retaliation.1 (Id.
A month later, on April 11, 2014, Plaintiff was walking to the HSU
when the sound cannon went off and triggered another flashback. (Docket
#1 at 2). Plaintiff filed another IC that day. The IC was dismissed because
the issue had been previously addressed. On June 9, 2014, Plaintiff was
walking outside and had another flashback because the sound cannon went
off. (Id. at 3; Docket #1-1 at 22–23). Plaintiff filed another IC and it was
dismissed because the issue had already been addressed. (Id.) OCI
contacted the PSU to ask about the last time Plaintiff was seen. (Id. at 23).
The PSU verified that Plaintiff was last seen by PSU staff on March 20, 2014,
and Plaintiff had not placed any additional requests to be seen by the PSU
for his condition. (Id.) The last flashback caused by the sound cannon
occurred in July 2014. (Docket #1 at 3).
Section 1983 “creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional violation.” Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996). Moreover, the doctrine of respondeat
superior (supervisory liability) does not apply to actions filed under Section
1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). Section 1983 does
not create collective or vicarious responsibility. Id. As explained below,
Plaintiff’s complaint alleges that Defendants did not take any action to
stop the practice of using the sound cannon or to transfer Plaintiff to a different
location. However, the exhibits attached to his complaint contradict Plaintiff’s
allegations. Specifically, Plaintiff continually told OCI that he did not want to be
transferred and if he was, he would consider it retaliation. (Docket #1-1 at 13, 17).
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none of the Defendants has any personal liability related to Plaintiff’s
involvement in the alleged constitutional deprivation.” Colbert v. City of
Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (quoting Minix v. Canarecci, 597
F.3d 823, 833 (7th Cir. 2010)). Plaintiff’s complaint includes no allegations
about any of the Defendants, let alone that they had anything to do with the
use of the sound cannon that triggered Plaintiff’s PTSD episodes. Therefore,
Plaintiff will not be permitted to proceed on claims in this case against
Defendants Judy Smith, Dr. Rotondi, Dr. Roehrich, Dr. Stolarski, and Dr.
Additionally, Plaintiff will not be granted leave to amend his
complaint to name other defendants because his complaint would
nonetheless fail to state a claim. Plaintiff’s allegations seek to invoke his
rights under the Eighth Amendment, which secures an inmate’s right to
medical care. Prison officials violate this right when they “display
deliberate indifference to serious medical needs of prisoners.” Greeno v.
Daley, 414 F.3d 645, 652 (7th Cir. 2005) (quotation omitted). To sustain this
claim, Plaintiff must show: (1) an objectively serious medical condition; (2)
that a defendant knew of the condition and was deliberately indifferent in
treating it; and (3) this indifference caused him some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
An objectively serious medical condition is one that “has been
diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would perceive the need for a doctor's attention.”
Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008). A medical condition need
not be life-threatening to be serious; rather, it could be a condition that
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would result in further significant injury or unnecessary and wanton
infliction of pain if not treated. See Reed v. McBride, 178 F.3d 849, 852 (7th
Cir.1999). PTSD is a serious medical condition. Thus the Court accepts, for
the purpose of screening, that Plaintiff alleges a serious medical condition.
However, Plaintiff’s allegations fail to meet the second prong of
deliberate indifference. This prong has two components. “The official must
have subjective knowledge of the risk to the inmate’s health, and the official
also must disregard that risk.” Id. Negligence cannot support a claim of
deliberate indifference, nor is medical malpractice a constitutional
violation. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011). Even if a defendant recognizes the substantial risk,
he is free from liability if he “responded reasonably to the risk, even if the
harm ultimately was not averted.” Farmer v. Brennan, 511 U.S. 825, 843
The OCI staff were not using the sound cannon to inflict pain on
Plaintiff. Instead, it was used for a legitimate purpose, done in a manner
proscribed by federal agencies, and used infrequently. Plaintiff’s flashbacks
were an unintended consequence of using the sound cannon. Plaintiff was
able to request to be seen by PSU doctors. In fact, Plaintiff was seen by PSU
doctors at OCI after several of his flashbacks. Therefore, the OCI staff did
not act in a deliberately indifferent manner towards Plaintiff. Plaintiff’s
allegations simply do not rise to the level of a constitutional violation, and
the Court will dismiss this case accordingly. See Am. Nurses' Ass’n v. State
of Illinois, 783 F.2d 716, 724 (7th Cir. 1986) (“A plaintiff who files a long and
detailed complaint may plead himself out of court by including factual
allegations which if true show that his legal rights were not invaded.”);
McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000) (noting that a
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plaintiff may “plead himself out of court” by alleging facts establishing that
a defendant is entitled to prevail on a motion to dismiss); Jackson v. Marion
County, 66 F.3d 151, 153 (7th Cir. 1995) (explaining that “a plaintiff can plead
himself out of court by alleging facts which show that he has no claim, even
though he was not required to allege those facts. . . . Allegations in a
complaint are binding admissions . . . and admissions can of course admit
the admitter to the exit from the federal courthouse.”); Wroblewski v. City of
Washburn, 965 F.2d 452, 459 (7th Cir.1992) (“We are not required to ignore
facts alleged in the complaint that undermine plaintiff's claim.”).
For the reasons provided, the Court finds that Plaintiff has failed to
state a viable claim for relief, and will therefore dismiss this action with
IT IS ORDERED that this case be and the same is hereby
DISMISSED with prejudice under 28 U.S.C. § 1915A(b)(1) because the
complaint fails to state a claim; and
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g).
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 thirty days of the
entry of judgment. See Fed. R. of App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the thirty-day deadline. See Fed.
R. App. P. 4(a)(5)(A).
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Under limited 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). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within
twenty-eight days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed 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).
A party is expected to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of March, 2021.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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