Kirksey v. Matushak et al

Filing 25

ORDER signed by Judge J P Stadtmueller on 11/13/2023. 18 Plaintiff's Motion to Reopen Case is GRANTED; Clerk of Court is DIRECTED to take all appropriate steps to reopen this case. 22 Plaintiff's Duplicative Motion to Reopen Case is DENIED as moot. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the balance of the filing fee as specified. 20 Plaintiff's Motion to Amend Complaint is GRANTED; Clerk of Court is DIRECTED to docket ECF No. 20-1 as the operative amended complaint. Plaintiff may PROCEED on an Eighth Amendment deliberate indifference to risk of harm claim against Defendant Doe and an Eighth Amendment deli berate indifference claim to serious medical need claim against Defendants Doe, Cole, Matushak, and Gomm. Copies of Plaintiff's Amended Complaint and this Order to be electronically SENT to the WI DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. Defendants to FILE any exhaustion-related challenges in a motion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (cc: all counsel, via mail to Terrance Lavell Kirksey with pro se and prisoner guides and to Warden (order only) at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE LAVELL KIRKSEY,
Plaintiff,
v.

Case No. 21-CV-588-JPS-JPS

C.O. ANTHONY MATUSHAK,
MICHAEL COLE, SGT. JOSHUA
GOMM, and JOHN DOE,

ORDER

Defendants.

On January 21, 2022, the Court entered an order in all of Plaintiff
Terrance Lavell Kirksey’s open cases, imposing a filing bar which limits
him to proceeding with only two cases at any one time. ECF No. 13. The
Court instructed Plaintiff to select two of his seven open cases on which he
would like to proceed and that the Court would administratively close his
remaining cases. Id. Plaintiff informed the Court that he would like to
proceed on Case Numbers 19-CV-1278 and 21-CV-1357. ECF No. 14. The
Court accordingly closed this case on February 7, 2022. ECF No. 15. Plaintiff
has since filed motions to re-open this case. ECF Nos. 18, 22. In light of the
closure of Plaintiff’s other cases before the Court and Plaintiff’s submission
regarding the exhaustion of administrative remedies in this case, ECF No.
21, the Court will grant Plaintiff’s motion to re-open the case.
First, the Court will grant Plaintiff’s motion to amend the complaint,
ECF No. 20. Federal Rule of Civil Procedure 15 allows a party to amend its
pleading once as a matter of course either within twenty-one days of
serving it or if the pleading is one to which a responsive pleading is

required, twenty-one days after service of a responsive pleading. Fed. R.
Civ. P. 15(a)(1). A party may otherwise amend its pleading only with either
the opposing party’s written consent or leave of the court Fed. R. Civ. P.
15(a)(2). Rule 15 also provides that a Court should freely grant leave to
amend when justice so requires. Here, the case is essentially starting afresh,
and Plaintiff provides that he has amended his complaint to simplify the
claims and to limit the number of defendants. Given this, the Court finds
that justice requires the ability to amend, and the Court will accordingly
grant Plaintiff’s motion to amend the complaint. As such, the Clerk of Court
will be instructed to file ECF No. 20-1 as the amended complaint. The
remainder of this order addresses Plaintiff’s motion for leave to proceed
without prepayment of the filing fee and screens the amended complaint,
ECF No. 20-1, as the operative complaint.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing
fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On May 17, 2021, the Court ordered Plaintiff to pay an initial partial
filing fee of $15.49. ECF No. 7. Plaintiff paid that fee on June 9, 2021. The
Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 2. He must pay the remainder of the filing fee over
time in the manner explained at the end of this Order.

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2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the PLRA, 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)). 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. at 556).
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
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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)).
2.2

Plaintiff’s Allegations

On February 12, 2021, Plaintiff was placed on clinical observation
status in the restricted housing unit (“RHU”) after Plaintiff pressed the
emergency button in his cell from approximately 5:30 p.m. to 6:15 p.m. due
to having a mental breakdown and threatening to harm himself. ECF No
20-1 at 3. Defendant John Doe (“Doe”) worked in the RHU and told Plaintiff
that he would not hurt himself and that Doe did not even care if Plaintiff
did. Id. Defendant Lt. Cole (“Cole”), Defendant Sgt. Matushak
(“Matushak”), and Defendant Sgt. Gomm (“Gomm”) were all made aware
of Plaintiff’s self-harm statements due to the notifications relayed in the
chain of command. Id. Cole communicated with PSU personnel DorrowStevens, and Plaintiff was placed on observation status due to his known
history for self-harm threats. Plaintiff made Cole aware that Doe had been
provoking Plaintiff to self-harm. Id.
While in observation, Plaintiff was still not in his right state of mind,
and he pressed the emergency button in his cell. Id. Doe answered the
intercom at approximately 6:30 p.m. to 7:10 p.m. Id. Plaintiff asked Doe
about taunting him and why Doe believed that Plaintiff would not hurt
himself. Id. Plaintiff further explained that he was having a mental
breakdown and that the cell was extremely cold. Id. Plaintiff told Doe that
he would engage in self-harm at that time. Id. Doe again told Plaintiff that
he did not believe Plaintiff and that he did not care if Plaintiff self-harmed;
Doe then told Plaintiff to go ahead and self-harm. Id. at 4. Plaintiff and Doe
then engaged in a heated verbal altercation while Plaintiff harmed himself
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by busting his head on the wall while Doe watched. Doe failed to intervene
and failed to notify any other staff. Id. Plaintiff and several other inmates
yelled for staff to come, and that Plaintiff had harmed himself and busted
his head. Id.
Matushak walked down the wing to speak with an inmate for an
unrelated, non-emergent reason. Id. Plaintiff and other inmates told
Matushak that Plaintiff busted his head and needed staff attention, but
Matushak continued talking to the other inmate and took no action. Id.
Matushak at some point communicated with Plaintiff about his head and
asked if he needed medical attention; Plaintiff replied, yes. Id. Matushak
notified Gomm at approximately 7:10 p.m., and Gomm notified Cole.
All Defendants were in front of Plaintiff’s cell and observed his
busted head. Doe knew or should have known that Plaintiff’s head injury
warranted medical attention. Id. at 4–5. Blood was observed on Plaintiff’s
forehead and Defendants knew he had harmed himself. Id. at 5. All
Defendants made a professional medical judgment when they failed to
render Plaintiff medical aid. Id. Plaintiff maintains that Defendants’
conduct was willfully malicious. Id. Plaintiff was in excruciating pain and
suffered from pre-existing health conditions that Defendants knew about,
but Defendants failed to prevent his suffering. Id. at 6.
Only Cole wrote an incident report about Plaintiff’s situation and
Cole falsely acted as if he was the only Defendant principally involved with
Plaintiff prior to his self-harm incident. Id. Plaintiff alleges that Cole
falsified the documents and conspired to cover up the deprivation of
Plaintiff’s constitutional rights. Id. Plaintiff also alleges that Defendants
acted together as retaliation against Plaintiff for exercising his rights to
request medical attention. Id. at 6–7.
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Plaintiff did not receive medical attention for his injuries or
psychological services until several days later, on February 15, 2021. Id. at
7. Then Nurse Matushak, Defendant Matushak’s wife, assessed Plaintiff
and noted he had a 2 cm healing laceration on his forehead at hairline. Id.
2.3

Analysis

The Court finds that Plaintiff may proceed on an Eighth Amendment
deliberate-indifference claim against Defendant Doe for his or her
indifference to the risk of Plaintiff’s self-harm. The Eighth Amendment
prohibits “cruel and unusual punishments” and “imposes a duty on prison
officials to take reasonable measures to guarantee an inmate’s safety and to
ensure that inmates receive adequate care.” Phillips v. Diedrick, No. 18-C-56,
2019 WL 318403, at *2 (E.D. Wis. Jan. 24, 2019) (citing Farmer v. Brennan, 511
U.S. 825, 832 (1994)). While a prison official’s deliberate indifference to a
prisoner’s substantial risk of serious harm violates the Eighth Amendment,
not every claim by a prisoner that he did not receive adequate care will
succeed. Id. (citing Estelle v. Gamble, 429 U.S. 97, 104–05 (1976)). To prevail
on such a claim, a plaintiff will have to provide evidence showing that
“(1) his medical need was objectively serious, and (2) the defendant[]
consciously disregarded this need.” Berry v. Lutsey, 780 F. App’x 365, 368–
69 (7th Cir. 2019) (citing Farmer, 511 U.S. at 834).
Prison staff have a duty to prevent inmates from causing serious
harm to themselves. Pittman ex rel. Hamilton v. County of Madison, 746 F.3d
766, 775–76 (7th Cir. 2014). Before an official will be liable for ignoring a risk
of self-harm, however, the “risk of future harm must be sure or very likely
to give rise to sufficiently imminent dangers.” Davis-Clair v. Turck, 714 F.
App’x 605, 606 (7th Cir. 2018) (internal quotation marks omitted). The
question of when that risk of future harm becomes “sure or very likely to
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give rise to sufficiently imminent dangers” depends on the circumstances
of the case. See, e.g., Freeman v. Berge, 441 F.3d 543, 546–47 (7th Cir. 2006)
(explaining that “at some point,” to ensure a prisoner is not “seriously
endangering his health,” prison officials would have a duty and right to
step in and force a prisoner on a hunger strike to take nourishment); see also
Davis v. Gee, No. 14-cv-617, 2017 WL 2880869, at *3–4 (W.D. Wis. July 6,
2017) (holding that to show a constitutional injury, the harm must present
an objectively, sufficiently serious risk of serious damage to future health;
swallowing a handful of Tylenol fails to do that).
Here, Plaintiff alleges that Defendant Doe was aware that he planned
to hurt himself and failed to act. Plaintiff further alleges that after informing
Doe, Plaintiff engaged in self-harm and was seriously injured and
experienced excruciating pain. At this early stage, without more detailed
information, the Court will allow Plaintiff to proceed on a deliberate
indifference claim against Doe for his or her indifference to Plaintiff’s
serious risk of self-harm. Plaintiff may not proceed on this claim, however,
against the other named Defendants. Plaintiff alleges that Cole, Matushak,
and Gomm were all made aware of Plaintiff’s self-harm statements through
the chain of command. Following this notification however, Plaintiff was
placed in observation status for his safety and there are no factual
allegations against these Defendants again until after Plaintiff had already
harmed himself.
Second, the Court finds that Plaintiff may proceed against Doe, Cole,
Matushak, and Gomm on an Eighth Amendment deliberate indifference
claim for their indifference to Plaintiff’s medical need. The Eighth
Amendment secures an inmate’s right to medical care. Prison officials
violate this right when they “display deliberate indifference to serious
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medical needs of prisoners.” Greeno v. Daley, 414 F.3d 645, 652 (7th Cir. 2005)
(internal quotation omitted). Deliberate indifference claims contain both an
objective and a subjective component: the inmate “must first establish that
his medical condition is objectively, ‘sufficiently serious,’; and second, that
prison officials acted with a ‘sufficiently culpable state of mind,’ i.e., that
they both knew of and disregarded an excessive risk to inmate health.”
Lewis v. McLean, 864 F.3d 556, 562–63 (7th Cir. 2017) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (internal citations omitted)).
“A delay in treating non-life-threatening but painful conditions may
constitute deliberate indifference if the delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Arnett v. Webster, 658 F.3d 742,
753 (7th Cir. 2011) (citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010)). The length of delay that is tolerable “‘depends on the seriousness of
the condition and the ease of providing treatment.’” Id. (quoting McGowan,
612 F.3d at 640). At the screening stage, the Court finds that Plaintiff’s
allegations are sufficient to proceed against Doe, Cole, Matushak, and
Gomm. Plaintiff alleges that he slammed his head into the wall and was in
excruciating pain, and that these Defendants maliciously denied him
medical care for several days. As such, Plaintiff may proceed against Doe,
Cole, Matushak, and Gomm on an Eighth Amendment deliberate
indifference claim for their indifference to Plaintiff’s serious medical need.
Third, Plaintiff may not proceed on a First Amendment retaliation
claim. To prevail on a First Amendment claim, Plaintiff must ultimately
show that: “(1) he engaged in activity protected by the First Amendment;
(2) he suffered a deprivation likely to deter such activity; and (3) the First
Amendment activity was at least a motivating factor in the decision to

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impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996 (7th Cir.
2014).
Here, Plaintiff generally alleges that Defendants retaliated against
him for previously requesting medical attention. Id. At the pleading stage,
the Court finds these allegations sufficient to satisfy the first prong that
Plaintiff did engage in protected activity by requesting medical attention.
See Czapiewski v. Pingel, No. 16-CV-1709, 2017 WL 435803, at *2 (E.D. Wis.
Feb. 1, 2017) (allowing retaliation claim to proceed where plaintiff alleged
that he expressed a need for medical/psychological care and that, as a result
of expressing that need, he received a conduct report and was placed in the
restricted housing unit); Thomas v. Wolfe, No. 112-CV-443-JMS-DKL, 2016
WL 4592201, at *2 (S.D. Ind. Sept. 2, 2016) (allowing claim to proceed where
defendant allegedly retaliated against plaintiff by issuing him a conduct
report for submitting health care request forms and seeking copies of his
medical records). However, none of Plaintiff’s factual allegations suggests
that any of Defendants’ actions were motivated by his First Amendment
activity. Plaintiff’s generalized statement that an inference of retaliation can
be drawn from the facts is conclusory and is therefore insufficient to
proceed. As such, the Court finds that Plaintiff may not proceed on a First
Amendment retaliation claim against any Defendants.
Finally, Plaintiff may not proceed on a conspiracy claim. To prevail
on a conspiracy claim, a plaintiff must show that: “(1) the individuals
reached an agreement to deprive him of his constitutional rights, and
(2) overt acts in furtherance actually deprived him of those rights.” Beaman
v. Freesmeyer, 776 F.3d 500, 510 (7th Cir. 2015). Put differently, Plaintiff must
“show an underlying constitutional violation” and “demonstrate that the
defendants agreed to inflict the constitutional harm.” Hurt v. Wise, 880 F.3d
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831, 842 (7th Cir. 2018). “Because conspiracies are often carried out
clandestinely and direct evidence is rarely available, plaintiffs can use
circumstantial evidence to establish a conspiracy, but such evidence cannot
be speculative.” Beaman, 776 F.3d at 511.
Here, Plaintiff’s conspiracy fails because the alleged conspiracy act—
Defendants falsifying documents related to Plaintiff’s self-harm—did not
actually deprive him of any constitutional rights. Falsifying the incident
report occurred after Defendants had already allegedly denied Plaintiff
medical attention, and therefore the alleged conspiracy to cover up their
actions did not deprive Plaintiff of his rights. Moreover, even if Plaintiff did
state a claim that Defendants conspired to violate his right to medical care,
such a claim would add nothing to this case because Defendants are state
actors, Plaintiff alleges that each Defendant independently violated his
rights, and conspiracy is not an independent basis of liability in § 1983
actions. See Smith v. Gomez, 550 F.3d 613, 617 (7th Cir. 2008). As such, the
Court finds that Plaintiff may not proceed on a conspiracy claim.
3.

CONCLUSION
In light of the foregoing, the Court finds that Plaintiff may proceed

on the following claims pursuant to 28 U.S.C. § 1915A(b):
Claim One: Eighth Amendment deliberate-indifference claim
against Defendant Doe for his or her indifference to the serious risk of
Plaintiff’s self-harm.
Claim Two: Eighth Amendment deliberate-indifference claim
against Defendants Doe, Cole, Matushak, and Gomm for their indifference
to Plaintiff’s serious medical need by failing to provide him medical
attention following his self-harm injury.

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The Court has enclosed with this Order guides prepared by court
staff to address common questions that arise in cases filed by prisoners.
These guides are entitled, “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions.” They
contain information that Plaintiff may find useful in prosecuting his case.
Defendants should take note that, within forty-five (45) days of
service of this Order, they are to file a summary judgment motion that raises
all exhaustion-related challenges. The Court will issue a scheduling order
at a later date that embodies other relevant deadlines.
Accordingly,
IT IS ORDERED that Plaintiff’s motion to reopen the case, ECF No.
18, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Clerk of Court take all
appropriate steps to re-open this case;
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to
proceed without prepaying the filing fee, ECF No. 2, be and the same is
hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to amend the
complaint, ECF No. 20, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Clerk of Court docket ECF No.
20-1 as the amended complaint;
IT IS FURTHER ORDERED that Plaintiff’s duplicative motion to
re-open the case, ECF No. 22, be and the same is hereby DENIED as moot;
IT IS FURTHER ORDERED that under an informal service
agreement between the Wisconsin Department of Justice and this Court, a
copy of the amended complaint and this Order have been electronically

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transmitted to the Wisconsin Department of Justice for service on
Defendants Cole, Matushak, and Gomm;
IT IS FURTHER ORDERED that under the informal service
agreement, Defendants shall file a responsive pleading to the amended
complaint within sixty (60) days;
IT IS FURTHER ORDERED that Defendants raise any exhaustionrelated challenges by filing a motion for summary judgment within fortyfive (45) days of service;
IT IS FURTHER ORDERED if Defendants contemplate a motion to
dismiss, the parties must meet and confer before the motion is filed.
Defendants should take care to explain the reasons why they intend to
move to dismiss the amended complaint, and Plaintiff should strongly
consider filing a second amended complaint. The Court expects this
exercise in efficiency will obviate the need to file most motions to dismiss.
Indeed, when the Court grants a motion to dismiss, it typically grants leave
to amend unless it is “certain from the face of the complaint that any
amendment would be futile or otherwise unwarranted.” Harris v. Meisner,
No. 20-2650, 2021 WL 5563942, at *2 (7th Cir. Nov. 29, 2021) (quoting
Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. & Nw. Ind., 786 F.3d 510,
524 (7th Cir. 2015)). Therefore, it is in both parties’ interest to discuss the
matter prior to motion submissions. Briefs in support of, or opposition to,
motions to dismiss should cite no more than ten (10) cases per claim. No
string citations will be accepted. If Defendants file a motion to dismiss,
Plaintiff is hereby warned that he must file a response, in accordance with
Civil Local Rule 7 (E.D. Wis.), or he may be deemed to have waived any
argument against dismissal and face dismissal of this matter with prejudice.

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IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $334.51 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 case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
forward a copy of this Order along with his 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 the Clerk’s Office mail Plaintiff a
copy of the guides entitled “Answers to Prisoner Litigants’ Common
Questions” and “Answers to Pro Se Litigants’ Common Questions,” along
with this Order.
Dated at Milwaukee, Wisconsin, this 13th day of November, 2023.
BY THE COURT:

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

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Plaintiffs who are inmates at Prisoner E-Filing Program institutions shall
submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. Prisoner E-Filing is mandatory
for all inmates at Columbia Correctional Institution, Dodge Correctional
Institution, Green Bay Correctional Institution, Oshkosh Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure
Program Facility.
Plaintiffs who are inmates at all other prison facilities, or who have been
released from custody, 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
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. If mail is received directly to the Court’s chambers, IT
WILL BE RETURNED TO SENDER AND WILL NOT BE FILED IN
THE CASE.
Plaintiff is further advised that failure to timely file any brief, motion,
response, or reply 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. IF PLAINTIFF FAILS TO PROVIDE AN UPDATED
ADDRESS TO THE COURT AND MAIL IS RETURNED TO THE
COURT AS UNDELIVERABLE, THE COURT WILL DISMISS THIS
ACTION WITHOUT PREJUDICE.

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