Walker v. Wisconsin Department of Health Services et al
SCREENING ORDER signed by Judge Brett H Ludwig on 5/9/22 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. On or before June 6, 2022, Walker may file an amended complaint curing the defects in the original complaint. (cc: all counsel and mailed to pro se party w/amended complaint & guide, warden)(jad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DE’VON L. WALKER,
Case No. 22-cv-0244-bhl
WISCONSIN DEPARTMENT OF HEALTH SERVICES,
WISCONSIN RESOURCE CENTER,
THERESA BARWELL, and
Plaintiff De’Von Walker, who is currently serving a state prison sentence at the Waupun
Correctional Institution and representing himself, filed a complaint under 42 U.S.C. §1983,
alleging that his civil rights were violated. This matter comes before the Court on Walker’s motion
for leave to proceed without prepaying the full filing fee and to screen the complaint.
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE
Walker has requested leave to proceed without prepaying the full filing fee (in forma
pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of
the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). Walker has filed a certified copy of
his prison trust account statement for the six-month period immediately preceding the filing of his
complaint, as required under 28 U.S.C. §1915(a)(2), and has been assessed and paid an initial
partial filing fee of $24.46. Walker’s motion for leave to proceed without prepaying the filing fee
will be granted.
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 1 of 7 Document 9
SCREENING OF THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity and must dismiss any
complaint or portion thereof if the prisoner has raised any 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 screening a
complaint, the Court must determine whether the complaint complies with the Federal Rules of
Civil Procedure and states at least plausible claims for which relief may be granted. To state a
cognizable claim under the federal notice pleading system, a 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 must
be at least sufficient to provide notice to each defendant of what he or she is accused of doing, as well
as when and where the alleged actions or inactions occurred, and the nature and extent of any damage
or injury the actions or inactions caused.
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 2 of 7 Document 9
ALLEGATIONS OF THE COMPLAINT
Walker asserts that, beginning in 2019 and continuing for about two years, he was
“sexually assaulted” by Defendant corrections officer Renee Opperman. According to Walker,
near the beginning of this period, Defendant Captain Johnson and a John Doe officer attempted to
inquire about Opperman’s suspected misconduct, but he refused to talk to them because of a prior
negative experience with Johnson. Walker asserts there was not follow up after his refusal and the
investigation concluded with Opperman being allowed to return to work. Walker explains that
Opperman was recently criminally charged for her actions. Dkt. No. 1 at 4.
Walker alleges that he was “failed on several levels by staff who were supposed to protect
him,” including Defendant warden Suzanne Dehaan “who not only fostered the environment for
such despicable acts to take place, but as well did not put forth the proper due diligence in being
the last word on investigations of this nature and thus allowing one of her own staff members to
continue to prey upon a charge left to her.” He also asserts that he was “blamed for being
assaulted.” He explains that he met with Defendants Theresa Barwell and John Doe about three
times near the end of October 2021, and all three meetings were “accusatory and hostile.” He
states that he was placed in segregation “on at least one occasion stemming directly from these
meetings” after Barwell issued Walker a conduct report for soliciting a staff member. Dkt. No. 1
THE COURT’S ANALYSIS
The complaint fails to state a claim under Fed. R. Civ. P. 8 because the allegations are too
vague and conclusory for the Court to reasonably infer how, if at all, most of the Defendants may
have violated Walker’s constitutional rights. As previously noted, “[t]he tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 3 of 7 Document 9
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must contain factual
content to raise the right to relief above the speculative level.
Walker asserts that Opperman “sexually assaulted” him for more than two years, but he
provides no factual details to support such a conclusion. He does not explain the nature of their
interactions, how often they occurred, or at whose initiation they occurred. He also faults the
warden and her staff for failing to protect him, but he acknowledges that he refused to talk to
Johnson and a John Doe when they tried to address the issue, and he does not allege that he raised
the issue with anyone else. Staff cannot be liable for failing to protect him from a harm that they
did not know about. See Williams v. Shah, 927 F.3d 476, 482 (7th Cir. 2019) (explaining that a
defendant is liable for damages under §1983 only if the constitutional deprivation occurred at the
defendant’s behest or with her knowledge and consent).
Finally, Walker alleges that, two years after Johnson questioned him, Barwell and a John
Doe also questioned him, but they were accusatory, blamed him, and issued him a conduct report.
Once again, Walker fails to provide any details of their interactions. For example, Walker does
not allege whether the interactions between him and Opperman were allowed to continue after
Walker informed Barwell and the John Doe of what was happening. Nor does he explain what
happened during his meetings with Barwell and the John Doe. The mere fact that they concluded
based on their investigation that Walker had solicited Opperman does not suggest a constitutional
violation. Walker must provide details of his interactions with Barwell and the John Doe so the
Court can reasonably infer that their conclusion and response was constitutionally impermissible.
In short, Walker’s complaint contains many legal conclusions but insufficient facts to
support those conclusions. As such, he fails to state a claim upon which relief can be granted. The
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 4 of 7 Document 9
Court will afford Walker an opportunity to file an amended complaint. If he chooses to do so, the
Court must receive his amended complaint by June 6, 2022. Walker should draft the amended
complaint as if he is telling a story to someone who knows nothing about his situation. This means
that he should set forth facts explaining: (1) what happened to make him believe he has a legal
claim; (2) when it happened; (3) who was involved; and (4) how the Court can assist him in relation
to those events. The amended complaint does not have to include every detail, but it must include
sufficient factual content to allow the Court to reasonably infer a constitutional violation occurred.
The Court reminds Walker that the doctrine of respondeat superior cannot be used to hold
a supervisor liable for the misconduct of a subordinate. Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995). The only time a supervisor will be held liable for a subordinate’s misconduct is if
the supervisor directs or consents to the misconduct. For example, the supervisor “must know
about the conduct and facilitate it, approve it, condone it, or turn a blind eye” for fear of what they
Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir.1988)).
“[S]upervisors who are merely negligent in failing to detect and prevent subordinates’ misconduct
are not liable.” Jones, 856 F.2d at 992.
Walker is advised that an amended complaint replaces the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v. Bd. of Educ. of Franklin
Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056–57 (7th Cir. 1998). If an amended complaint is
received, the Court will screen it as required by 28 U.S.C. §1915A. If an amended complaint is
not received, the Court will dismiss this action based on Walker’s failure to state a claim in his
original complaint. The Court will enclose an amended complaint form along with this decision.
Walker must use the form. If he needs more space, he may attach up to five additional pages.
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 5 of 7 Document 9
IT IS THEREFORE ORDERED that Walker’s motion for leave to proceed in forma
pauperis (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that on or before June 6, 2022, Walker may file an
amended complaint curing the defects in the original complaint as described in this decision.
IT IS FURTHER ORDERED that the Clerk’s Office mail Walker a blank prisoner
amended complaint form and a copy of the guide entitled “Answers to Prisoner Litigants’ Common
Questions,” along with this order.
IT IS FURTHER ORDERED that the agency having custody of Walker shall collect
from his institution trust account the $325.36 balance of the filing fee by collecting monthly
payments from Walker’s prison trust account in an amount equal to 20% of the preceding month’s
income credited to the prisoner’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 Walker
is transferred to another institution, the transferring institution shall forward a copy of this Order
along with Walker’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where Walker is located.
IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing
Program institutions must submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. The Prisoner E-Filing Program is mandatory for all
inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 6 of 7 Document 9
and Oshkosh Correctional Institution. Plaintiffs who are inmates at all other prison facilities must
submit the original document for each filing to the Court to the following address:
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 COURT’S CHAMBERS. It will
only delay the processing of the matter.
Walker 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, including dismissal of this
Dated at Milwaukee, Wisconsin on May 9, 2022.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
Case 2:22-cv-00244-BHL Filed 05/09/22 Page 7 of 7 Document 9
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