Balsewicz v. Bowen et al

Filing 27

SCREENING ORDER re 26 Plaintiff's Second Amended Complaint signed by Judge J P Stadtmueller on 9/19/2022. Plaintiff may PROCEED on a First Amendment retaliation claim against Defendants Bowen, Rymarkiewicz, Wilson, Burns, Miller, and Larsen . Copies of Plaintiff's Second Amended Complaint and this Order to be electronically SENT to the Wisconsin 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 Plaintiff at Kettle Moraine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN H. BALSEWICZ, also known as
MELISSA BALSEWICZ,
Plaintiff,

Case No. 21-CV-748-JPS

v.
VARNISHA BOWEN, ROBERT J.
RYMARKIEWICZ, AIMEE WILSON,
MATTHEW BURNS, JOSEPH
MILLER, and JEREMIAH LARSEN,

ORDER

Defendants.
Plaintiff John H. Balsewicz, also known as Melissa Balsewicz, an
inmate confined at Kettle Moraine Correctional Institution filed a pro se
complaint under 42 U.S.C. § 1983 alleging that her constitutional rights
were violated. ECF No. 1. On August 12, 2022, the Court granted Plaintiff’s
motion to proceed for leave to proceed without the filing fee, screened
Plaintiff’s amended complaint and found that it failed to state a claim, and
ordered Plaintiff to file a second amended complaint. ECF No. 25. On
August 22, 2022, Plaintiff filed a second amended complaint, ECF No. 26,
that the Court will now screen.
1.

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

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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 a 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). A
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 her of a right secured by the Constitution or
the laws of the United States and that whoever deprived her 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)).

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2.

PLAINTIFF’S ALLEGATIONS1
Plaintiff names Varnisha Bowen (“Bowen”), Aimee Wilson

(“Wilson”), Mathew Burns (“Burns”), Joseph Miller (“Miller”), Jeremiah
Larsen (“Larsen”), and Robert Rymarkiewicz (“Rymarkiewicz”) as
Defendants in the second amended complaint. ECF No. 26. at 1.2 Plaintiff
alleges that all Defendants retaliated against her for submitting verbal
and/or written grievances for their failure to comply with the Prison Rape
Elimination Act (“PREA”). Id. at 2.
As to Wilson, on January 15, 2020, Plaintiff wrote Wilson about being
discriminated against as a transgender woman working in Waupun’s food
service and for other prisoners being able to view transgender women in
the nude in bathroom areas. Id. On January 17, 2020, Wilson replied that
Waupun was in compliance and that she was not investigating the
complaint. Id. Plaintiff filed an inmate complaint on February 5, 2020,
against Wilson for this response. Id.
On May 5, 2020, Plaintiff wrote Rymarkiewicz about the PREA
regarding transgender women having to use toilet areas with male
imamates and for staff overlooking her for jobs due to her complaints. Id.
On May 10, 2020 and May 29, 2020, Plaintiff wrote Lt. Staniec concerning
PREA issues; Plaintiff specifically complained that Manthei, Sonnetag, and
Bowen were not supervising the PREA’s enforcement, and that all food staff
were punishing her by making her do other inmate jobs due to complaints.
Id. at 4. Both Rymarkiewicz and Staniec admitted to contacting food service

The Court notes that Plaintiff’s allegations are at times confusing and
difficult to read; it uses its best efforts in reciting the allegations.
1

Defendants Yana Pusich, Tonia Moon, James Muenchow, and Randall
Hepp are terminated from this action because Plaintiff did not name them as
defendants in the second amended complaint. ECF No. 26.
2

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security (Manthei, Sonnetag, and Bowen) and letting them know about her
complaints about them. Id. Plaintiff submitted various inmate complaints
regarding staff retaliation for her complaints. Id. The inmate complaint
examiners, Tonia Moon and James Muenchow, absolutely refused to file
them for any reason. Id. On June 11, 2020, Wilson admitted during
testimony at Plaintiff’s disciplinary hearing that Plaintiff had been
complaining of food service staff harassing her. Id.
As to Bowen, Plaintiff claims that on May 27, 2020 (after Plaintiff’s
complaints to Wilson), Bowen arranged to have Plaintiff removed from
food service and escorted to the segregation unit. Id. at 5. Bowen wrote a
false conduct report for an alleged incident on May 26, 2020 and charged
Plaintiff with disruptive conduct, inadequate work, and disobeying orders.
Id.
As to Burns, Burns was the disciplinary hearing officer that
conducted Plaintiff’s major disciplinary hearing. Id. Burns found her guilty
of being disruptive and inadequate work but not guilty of disobeying
orders. Id. Plaintiff had previously complained about Burns for similar
conduct in another pending lawsuit. Id. On March 29, 2021, Plaintiff filed a
third inmate complaint regarding transgender prisoners and the shower
policy. Id. at 6.
As to Rymarkiewicz, on February 16, 2020, Plaintiff filed an inmate
complaint regarding security moving inmate Denzel Rivers into the same
cell hall after he had threatened and beaten two transgender women named
in his other lawsuit. Id. Rymarkiewicz had control of inmate moves and this
move was done in retaliation. Id. Rymarkiewicz refused to relocate Rivers;
Rivers wrote Plaintiff a threatening letter and attached a copy of Plaintiff’s
inmate complaint report. Id.
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As to Miller, on October 9, 2020, Plaintiff filed an inmate complaint
regarding Sgt. Miller telling her to move out of a single cell for transgender
prisoners and into a double cell close to Rivers. Id. at 7. This was done in
retaliation for her inmate complaints against him as there was no justifiable
reason for the move. Id.
As to Larsen, Larsen was personally involved in several
investigations regarding Plaintiff’s complaints. Id. Larsen placed Plaintiff in
clinical observation when she was refused a shower by Pawlyk. Id. Plaintiff
wrote her clinician and stated that her anxiety level goes sky high when
Sergeant Pawlyk works since she is harassed. Id. Plaintiff wrote her clinician
about Pawlyk refusing her showers and medication in September 2017.
Larsen was fully aware of Plaintiff’s concerns and complaints regarding her
safety and he was a supervisory investigator. Id. at 8. Plaintiff filed an
inmate complaint regarding Larsen telling her to shower at the same time
as Rivers. Plaintiff maintains this action was retaliatory. Id.
3.

ANALYSIS
The Court finds that Plaintiff can proceed against Defendants for a

First Amendment retaliation claim. To prevail on this claim, Plaintiff must
ultimately show that: “(1) his threat is protected by the First Amendment;
(2) he suffered a deprivation that would likely deter First Amendment
speech; and (3) his threat was at ‘least a motivating factor’” in the
defendants’ decision to take retaliatory action. Reed v. Bowen, 769 F. App’x
365, 370 (7th Cir. 2019) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009)). Here, Plaintiff alleges that Defendants retaliated against her in
various manners for filing inmate grievances. The Court notes that in many
instances, Plaintiff’s allegations contain minimal factual details, however,

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at the early pleading stage, the Court finds these allegations sufficient to
state a First Amendment retaliation claim.
4.

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

on the following claim pursuant to 28 U.S.C. § 1915A(b):
Claim One: A First Amendment retaliation claim against
Defendants Bowen, Rymarkiewicz , Wilson, Burns, Miller, and Larsen.
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 under an informal service agreement between
the Wisconsin Department of Justice and this Court, a copy of the second
amended complaint and this Order have been electronically transmitted to
the Wisconsin Department of Justice for service on Defendants Bowen,
Rymarkiewicz, Wilson, Burns, Miller, and Larsen;
IT IS FURTHER ORDERED that under the informal service
agreement, those Defendants shall file a responsive pleading to the second
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 that 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 complaint, and Plaintiff should strongly consider
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filing an 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 she must file a response, in accordance with Civil Local Rule 7 (E.D.
Wis.), or she may be deemed to have waived any argument against
dismissal and face dismissal of this matter with prejudice.
Dated at Milwaukee, Wisconsin, this 19th day of September, 2022.
BY THE COURT:

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

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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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