Samsa v. Russell et al
ORDER signed by Chief Judge Pamela Pepper on 11/14/2023. Defendant Jerome Baily DISMISSED. Defendant Jamall Russell to file responsive pleading to second amended complaint within 60 days. (cc: all counsel and mailed to Dennis Samsa)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 23-cv-274-pp
JAMALL RUSSELL and JEROME BAILY,
ORDER SCREENING SECOND AMENDED COMPLAINT (DKT. NO. 9)
Dennis Samsa, who was incarcerated at Columbia Correctional
Institution when he filed this case and who is representing himself, filed a
complaint alleging that the defendants violated his constitutional rights. Before
the court had screened the original complaint, the plaintiff filed an amended
complaint. Dkt. No. 7. The court screened the amended complaint and found
that it failed to state a claim. Dkt. No. 8 at 4-6. The court gave the plaintiff an
opportunity to file a second amended complaint, which he did. Dkt. No. 9. This
order screens the second amended complaint.
Screening the Second Amended Complaint
Federal Screening Standard
Under the Prison Litigation Reform Act, the court must screen
complaints brought by incarcerated persons seeking relief from 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 incarcerated 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).
In determining whether the complaint states a claim, the court applies
the same standard that it applies when considering whether to dismiss a case
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 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 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. Cnty. of Milwaukee, 570 F.3d
824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by
plaintiffs who are representing themselves and holds such complaints 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)).
Second Amended Complaint’s Allegations
The plaintiff was incarcerated at Waupun Correctional Institution when
the incident described in the second amended complaint took place. Dkt. No. 9
at 1-2. The defendants—Jamall Russell and Jerome Baily—work at Waupun.
The plaintiff alleges that on November 27, 2022, Baily arrived at his cell
door with supplies; when Baily opened the cell’s trap door, the plaintiff told
Baily that “he was not allowed to pass food from one incarcerated individual to
another.” Id. at 2. Baily allegedly responded that he could do what he wanted.
Id. The plaintiff says that he placed his hand out of the trap door, held the
supply cart and told Baily to call a “white shirt.” Id. Baily allegedly refused and
told the plaintiff to let go but the plaintiff refused to let go. Id. The plaintiff
states that “Baily kept trying to pull the cart out of the plaintiff’s hand because
the plaintiff would not let go of the cart.” Id. This allegedly caused the plaintiff’s
hand and arm to “swell up and hurt and bleed [be]cause the defendant Baily
kept trying to pull the cart out of the plaintiff’s hand[.]” Id. at 2-3. The plaintiff
alleges that when Baily saw Russell, Baily started to yell for the plaintiff to let
go of the cart. Id. at 3. Russell allegedly ran down the hall and told the plaintiff
to let go of the cart, but the plaintiff said no. Id. “[D]efendant kept pulling on
[the] cart and inmates were yelling for staff to spray the plaintiff and [ ] Baily
ripped the cart out of [the plaintiff’s] hand[.]” Id. The plaintiff alleges that “7
seconds later defendant used excessive force to spray plaintiff for 7 seconds out
of retaliation[.]” Id.
The plaintiff alleges that the spray caused severe harm because his eyes
were burning for three days, and he now has a hard time seeing out of his eyes.
Id. According to the plaintiff, there was no need to spray him because staff
already had the cart out of his hand. Id. The plaintiff states that Russell
sprayed him because “he is a racist to white people and is always bias[ed]
toward [the plaintiff].” Id. The plaintiff claims that Russell violated his rights
under the Eighth Amendment. Id.
The plaintiff seeks compensatory and punitive damages. Id. at 4.
To state a claim for excessive use of force under the Eighth Amendment,
a plaintiff must allege that a defendant applied force maliciously and
sadistically to cause harm rather than in a good faith attempt to maintain or
restore discipline. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); Rice ex rel.
Rice v. Corr. Med. Servs., 675 F.3d 650, 668 (7th Cir. 2012). Factors relevant
to a defendant’s mental state include the need for force, the amount of force
used, the threat reasonably perceived by officers, efforts made to temper the
severity of the force and the extent of injuries caused by the force. Whitley v.
Albers, 475 U.S. 312, 321 (1986); Rice, 675 F.3d at 668. A “prisoner need not
show a ‘significant injury’ in order to have a good claim under the [E]ighth
[A]mendment, if a guard inflicted pain maliciously or sadistically.” Guitron v.
Paul, 675 F.3d 1044, 1046 (7th Cir. 2012) (citing Hudson, 503 U.S. at 7).
When the court screened the amended complaint, it determined that the
amended complaint did not state a claim for excessive force because the
plaintiff conceded that he had refused to follow orders to let go of the cart and
because he had not alleged that the defendants used more force than was
necessary to get the plaintiff to follow orders. Dkt. No. 8 at 5. That reasoning
still applies to the plaintiff’s allegations against Baily because, as the plaintiff’s
own version of the facts indicates, Baily was only trying to get the plaintiff to let
go of the cart. The plaintiff has not alleged that Baily unnecessarily used force
against him, and he has not stated an excessive force claim against Baily. The
court will dismiss Baily.
The plaintiff now alleges, however, that Russell sprayed him after the
plaintiff let go of the cart. The plaintiff states a plausible Eighth Amendment
excessive force claim against Russell because if the plaintiff already had let go
of the cart, there may no longer have been a need to use any force against the
The plaintiff alleges that Russell sprayed him out of retaliation. To plead
a retaliation claim, the plaintiff must allege that “(1) he engaged in activity
protected by the First Amendment; (2) he suffered a deprivation that would
likely deter First Amendment activity in the future; and (3) the First
Amendment activity was at least a motivating factor in the defendant’s decision
to take the retaliatory action.” Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir.
2015) (quoting Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). The
plaintiff has not stated a retaliation claim because he has not alleged that he
engaged in any First Amendment-protected activity or that Russell acted in
response to any such activity.
The plaintiff may proceed on an Eighth excessive force claim against
Russell in his individual capacity. He may not proceed on any other claims.1
The court ORDERS that defendant Jerome Baily is DISMISSED.
Under an informal service agreement between the Wisconsin Department
of Justice and this court, the court will electronically transmit a copy of the
second amended complaint (Dkt. No. 9) and this order to the Wisconsin
Department of Justice for service on defendant Jamall Russell. Under the
informal service agreement, the court ORDERS defendant Russell to file a
responsive pleading to the second amended complaint within sixty (60) days.
The court ORDERS that the parties must not begin discovery until after
the court enters a scheduling order setting deadlines for completing discovery
and filing dispositive motions.
The court ORDERS that plaintiffs who are incarcerated at Prisoner EFiling Program institutions2 must submit all correspondence and case filings to
Under the heading “Jurisdiction,” the second amended complaint states that
the plaintiff is suing under state law and that “the state citizenship of the
plaintiff is different from the state citizenship of ever defendant and the amount
of money at stake in this case . . . is $45000.00.” Id. at 4. The plaintiff has not
identified any state law claims upon which he wants to proceed, and the court
cannot identify any state law claims supported by the facts. It also appears
that all the parties are citizens of Wisconsin.
The Prisoner E-Filing Program is mandatory for all persons incarcerated at
Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
institution staff, who will scan and e-mail documents to the court. Plaintiffs
who are not incarcerated or who are incarcerated at all other prison facilities
must submit the original document for each filing to the court to the following
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 JUDGE’S CHAMBERS. It will
only delay the processing of the case.
The court advises the 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 diligently pursue it. The parties must notify the
clerk of court of any change of address. The court advises the plaintiff that it is
his responsibility to promptly notify the court if he is released from custody or
transferred to a different institution. The plaintiff’s failure to keep the court
advised of his address may result in the court dismissing this case without
Dated in Milwaukee, Wisconsin this 14th day of November, 2023.
BY THE COURT:
HON. PAMELA PEPPER
Chief United States District Judge
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
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