Forester-Hoare v. Kind et al
SCREENING ORDER re 27 Plaintiff's Amended Complaint signed by Judge J P Stadtmueller on 11/13/2023. Defendants DeGroot, Grabowski, Steisel, Utter, Davidson, Hompe, and ODonnell are DISMISSED from this action. Plaintiff may PROCEED on an Eighth Amendment deliberate indifference claim, a First Amendment retaliation claim, and an Eighth Amendment conditions of confinement claim against specified Defendants. Copies of Plaintiff's Amended Complaint and this Order to be electronical ly SENT to the WI DOJ for service on Defendants, who shall FILE as 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. 26 Plaintiff's Motion for Reconsideration is DENIED. 40 Plaintiff's Motion to Expedite is DENIED as moot. 9 and 11 Plaintiff's Motions for Preliminary Injunction are DENIED as moot. As soon as possible but no later than 12/4/2023, GBCI Warden to FILE a response to 15 Plaintiff's Motion for Preliminary Injunction. See Order. (cc: all counsel, via mail to Sean Forester-Hoare at Green Bay Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 23-CV-537-JPS
SECURITY DIRECTOR KIND, CPT.
CUSHING, CPT. SWIEKATOWSKI,
DEPUTY WARDEN HAESE, WARDEN
RADTKE, SGT. PAGEL, SGT.
WASIELEWSKI, LT. KENT, LT.
ROZMARYNOWSKI, LT. WICKMAN, LT.
MEJIA, CPT. EISINGER, CPT. VAN
LANEN, CPT. COLE, CPT. SCHULTZ, CPS
PERTTU, CPS HOFFMAN, DAI
ADMINISTRATOR HOVE, WARDEN
COOPER, M. GREENWOOD, DOC
SECRETARY CARR, ICE DEGROOT, ICE
GRABOWSKI, ICE DAVIDSON, ICE
HOMPE, ICE O’DONNELL, PAULA
STEISEL, HANNAH UTER, DR.
HAMILTON, DR. PYRENBERG, H. BERG,
RN MATUSHAK, MS. VOGELS, MR.
DORSEY, MS. WERTEL, MS. HEIL,
ANGELA HANSEN, SANDRA DEYOUNG,
M. SCHORNACK, J. KOEHLER, K.
JOHNSON-DEBAUCHE, LT. MATUSHAK,
WARDEN STEVENS, and CASSANDRA
Plaintiff Sean Forester-Hoare, an inmate confined at Green Bay
Correctional Institution (“GBCI”) filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that his constitutional rights were violated. ECF No. 1.
Plaintiff has also filed several motions for a preliminary injunction. ECF
Nos. 9, 11, 15. On June 28, 2023, the Court screened Plaintiff’s complaint,
found that it violated Federal Rule of Civil Procedure 8, and allowed him
the opportunity to file an amended complaint. ECF No. 25. On July 7, 2023,
Plaintiff filed a motion for reconsideration of the Court’s order. ECF No. 26.
On July 10, 2023, Plaintiff filed an amended complaint. ECF No. 27. The
Order addresses Plaintiff’s motion for reconsideration and motions for
preliminary injunctive relief, as well as screens his amended complaint.
MOTION FOR RECONSIDERATION
The Court will deny Plaintiff’s motion for reconsideration of its prior
screening order. Because there has not yet been a final judgment in this case,
Federal Rule of Civil Procedure (“Rule”) 54(b) governs Plaintiff’s motion
for reconsideration. See Bhatia v. Vaswani, No. 18-CV-2387, 2020 WL
3578004, at *2 (N.D. Ill. July 1, 2020). Under Rule 54(b), “any order or other
decision [ ] that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of
the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and
liabilities.” Fed. R. Civ. P. 54(b); see also Rothwell Cotton Co. v. Rosenthal &
Co., 827 F.2d 246, 251 (7th Cir. 1987), opinion amended on denial of reh’g,
835 F.2d 710 (7th Cir. 1987) (affirming district court’s denial of motion to
reconsider under Rule 54(b)).
Revisions under Rule 54(b) are discouraged and should be reserved
for circumstances in which the initial decision was “clearly erroneous and
would work a manifest injustice.” See Ghashiyah v. Frank, 2008 WL 680203,
at *3 (E.D. Wis. Mar. 10, 2008) (quoting Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817 (1988)) (internal quotation marks omitted). In
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general, “litigants must fight an uphill battle in order to prevail on a motion
for reconsideration.” Id. (citation and internal quotation marks omitted).
Motions to reconsider under Rule 54(b) “are judged by largely the same
standards as motions to alter or amend a judgment under Rule 59(e).” Id.
The Court may grant a Rule 59(e) motion to alter or amend the judgment if
the movant presents newly discovered evidence that was not available at
the time of trial, points to evidence in the record that clearly establishes a
manifest error of law or fact, or if the Court previously misunderstood a
party’s arguments. Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir.
2012). Rule 59(e) motions are “not appropriately used to advance
arguments or theories that could and should have been made before the
district court rendered a judgment, or to present evidence that was
available earlier.” Id. (citation and internal quotation marks omitted). A
party moving for reconsideration bears a heavy burden and its motion must
be supported by a showing of extraordinary circumstances. Mahurkar v.
C.R. Bard, Inc., 2003 WL 22844237, at *1 (N.D. Ill. Dec. 1, 2003) (citing Caisse
Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1270 (7th Cir.
Plaintiff’s motion for relief from judgment or order does not meet
the high burden necessary to succeed. Plaintiff states that he needed to
submit a lengthy complaint because his case is complicated and all the
information in the original complaint is necessary for the Court to
understand the danger he faces. The Court disagrees with this assertion.
Plaintiff has filed a shortened and amended complaint that, as the Court
explains below, adequately describes his issues to proceed on certain
claims. As such, the Court denies Plaintiff’s motion for reconsideration and
proceeds to screen the amended complaint.
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SCREENING THE AMENDED COMPLAINT
Federal Screening Standard
Under the Prison Litigation Reform Act (“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 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 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)).
Plaintiff alleges that GBCI and the Department of Corrections
(“DOC”) is intentionally keeping him in proven life-threatening danger
from hits of four different gangs to rape and kill him. ECF No. 27 at 3.
Plaintiff also alleges that Defendants are using the restrictive housing unit
(“RHU” or “the hole”) to keep him in cruel conditions of confinement in
feces-covered cells. Id. Plaintiff is denied all amenities and rights protected
under equal protection laws, like phone calls, visits, television, canteen,
contact with family, and legal resources, among other things. Id. Plaintiff
alleges that all named staff have participated in these violations but
especially Defendant Security Director Kind (“Kind”) and Defendant Cpt.
Cushing (“Cushing”). Id. Staff is intentionally failing to protect Plaintiff and
are deliberately indifferent to Plaintiff’s life, health, and safety. Id. Plaintiff
maintains that he must be transferred to another prison to be safe. Id.
As background, Plaintiff provides that he had started the police
academy when he was arrested. Id. Plaintiff maintains that he was wrongly
arrested and is innocent. Id. Because of his status in the police academy,
Plaintiff was assaulted many times in jail. Id. This is highly known by DOC,
and it is in Plaintiff’s P.R.C. classification status. Id. Due to this and
Plaintiff’s health needs, Plaintiff maintains that he can only be safely placed
The Court notes that Plaintiff’s handwriting is at times very difficult to
read. The Court has used its best effort and judgment in reiterating Plaintiff’s
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at DCI or WSPF. Id. DOC is aware that Plaintiff has been assaulted dozens
of times and stabbed three times as a result of this status. Id.
Plaintiff has proof that staff is acting intentionally to harm him. Id.
On January 15, 2021, Plaintiff was sent to GBCI on an emergency P.C.R.
health-needs transfer. Id. This was a security-transfer and Kind was directly
called by the Security Director at WCI and told Plaintiff’s needs. Id. Kind
agreed to meet Plaintiff’s needs and transferred him to GBCI. Plaintiff was
told he would be placed in P.C. in a treatment center building. However,
on the van ride to GBCI, Kind, Cushing, Defendant Deputy Warden Haese
(“Haese”), and Warden Radtke (“Radtke”) cancelled everything, and
Plaintiff was given a conduct report (“CR”) for not going to general
population (“GP”) where staff knew he would be killed. Id.
Since then, GBCI/DOC has conducted sixteen investigations that
prove Plaintiff is in life-threatening danger. Id. at 5. Defendants have even
caught other prisoners on camera who were promising to rape and kill
Plaintiff. Id. Despite this, Defendants will still not transfer him or return him
to P.C. DOC policy requires that once a danger is proven, staff has to protect
an inmate. Id. ICE and PREA investigations have affirmed and ordered that
Defendants do both, but they refuse to do so. Id.
Plaintiff alleges that Defendants’ actions are done in retaliation for
filing PREA complaints and lawsuits against other staff at WCI. Id. Cushing
used to work at WCI and is friends with the staff that assaulted Plaintiff.
Staff made it look like they fixed the situation by sending Plaintiff to GBCI,
but Defendants Cushing, Swiekatowski, Kind, Haese, and Radtke intended
to make sure Plaintiff’s needs were not met and that he would be in danger
or forced to take CR and stay in RHU. Id. Staff are intentionally encouraging
inmates to assault Plaintiff. Cushing came to see Plaintiff and told him that
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he and Kind took him off F.P.C. and would not put him back on, and that
Plaintiff would die there; Cushing then laughed and left. Every time
Cushing comes by, he does this and taunts Plaintiff. Id. The hearing officer,
Defendants Cpt. Cole (“Cole”) and Lt. Matushak (“Lt. Matushak”) do the
same as they deliver CRs for Plaintiff not going to GP. On February 9, 2021,
Defendant Wickman said loudly that Plaintiff was a cop and no longer on
P.C. even though there are hits on him. Id. at 6. The staff all say things like
this loudly so that other inmates on the unit hear and get paid to assault
and kill Plaintiff. Id. Staff’s acts are intentional to place Plaintiff’s life in
In September 2021, Lt. Matushak and Defendant Lt. Rozmarynowski
(“Rozmarynowski”) started a new form of retaliation for Plaintiff not going
to GP. Id. Every time Plaintiff refused GP, they found a new cell covered in
feces with broken sinks and toilet and placed Plaintiff in those cells prior to
cleaning them. Id. Plaintiff got so depressed that he hung himself. Id. When
released from clinical observation, Plaintiff was put right back in the same
Affirmed reports and complaints came proving that Plaintiff’s life
was in danger, but Defendants Perttu, Cushing, Swiekatowski, Schultz,
Kind, Haese, Radtke, and Stevens still refused to transfer Plaintiff. Id. An
inmate complaint confirmed that he should be transferred, but Kind, HSM
Utter, Baier, Radtke all refused to do it. Id. Disability Coordinator Brown
told HSU and Kind to transfer him, but they refused. Id. at 7. Cpt.
Cummings came to see Plaintiff and said HSU would return healthcare and
Kind would transfer him, but neither did. Id DOC internal affairs called
Plaintiff on September 20, 2021, and apologized; they filed a report and told
Kind and Radtke to transfer him, but they again refused. Id.
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RHU staff kept moving inmates by him that had assaulted or put hits
on Plaintiff. Id. PREA Director Weber told Kind to transfer Plaintiff; Kind
refused. Id. Cummings set up a transfer but she quit that week, and Perttu
cancelled the transfer to intentionally keep Plaintiff in danger. Id. On
September 30, 2022, Plaintiffs’ inmate complaint was affirmed and told
Kind and Radtke he was to be transferred and returned to PC; they refused
again. Id. Kind has to sign off on all security decisions, so he is responsible
for everything being done as well as other staff through Defendants
Wickman, Cole, and Matushak finding him guilty of CRs for not going to
GP. Cole referred Plaintiff for a transfer but Cushing, Swiekatowski, Kind,
and Radtke told him to cancel it. Id. Plaintiff sent all Defendants a thirtypage packet of the reports and all defendants have the power to transfer
Plaintiff, but they refused. Id. at 8. Swiekatowski was replaced by
Defendant Schultz and Radtke was replaced by Stevens. Id. Plaintiff sent
reviews of his situation to Perttu, PSU staff Defendants Hamilton and
Rozmarynowski, VanLanen, Hoffman, Cummings, Swiekatowksi, Schultz,
Kind, Haese, Radtke, Stevens, Mejia, and Cushing who had a duty to
transfer and return Plaintiff to PC. Id. On December 23, 2021, Defendants
Heil, DeYoung, Dorsey, Pagel, Schornack, and Koehler held a hearing but
refused to transfer Plaintiff. Id. On December 22, 2022, Defendant JohnsonDebauche held the hearing and again refused to transfer Plaintiff. Id.
Plaintiff sent it to Defendants DOC Administrators Hove, Cooper,
and Greenwood and to DOC Secretary Carr. Plaintiff also sent it to ICE staff
Defendants DeGroot, Grabowski, Steisel, Utter, Davidson, Hompe, and
O’Donnell; these defendants failed to enforce the remedies affirmed in his
inmate complaints. Id. On April 2, 2023, they contacted Kind, but Kind
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again refused to transfer Plaintiff. Id. VanLanen stated that they are aware
that Plaintiff can be sent to DCI but that they are not using that option. Id.
In addition to being forced into RHU, Plaintiff states that he faces
two additional dangers as a result of Defendants’ actions. Id. at 9. Plaintiff
suffers from neuromuscular disorders, PTSD terrors, and Parkinson’s
Disease. Plaintiff’s conditions are degenerative and get worse with age.
Emotional trauma worsens Plaintiff’s conditions and Defendants’ actions
have caused him additional pain and worse seizures. Id. Plaintiff is also in
danger of suicide as a result of Defendants’ actions. Id. Plaintiff fears for his
life and Defendants have knowingly and intentionally kept Plaintiff in
First, Plaintiff may proceed on an Eighth Amendment deliberate
indifference claim against Kind, Cushing, Swiekatowski, Haese, Radtke,
Pagel, Wasielewski, Kent, Rozmarynowski, Wickman, Mejia, Eisinger,
VanLanen, Cole, Schultz, Perttu, Hoffman, Hove, Cooper, Greenwood,
Carr, Hamilton, Pyrenberg, Berg, Rn Matushak, Vogels, Dorsey, Wertel,
Heil, Hansen, Deyoung, Schornack, Koehler, Johnson-Debauche, Lt.
Matushak, Stevens, and Baier. The Eighth Amendment requires prison
officials to take “reasonable measures to guarantee the safety of the
inmates.” Balsewicz v. Pawlyk, 963 F.3d 650, 654 (7th Cir. 2020) (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994). “This means that a constitutional
violation inheres in a prison official's ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate.” Id. (citing Farmer, 511 U.S. at
828). Deliberate indifference has an objective component and a subjective
component. Id. To satisfy the objective component, the prisoner must have
been exposed to a harm that was objectively serious. Id. (citing Farmer, 511
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U.S. at 834). Under the subjective component, the prison official must have
known of and disregarded an excessive risk to the inmate's health or safety.
Id. (citing Farmer, 511 U.S. at 837–38). That is, the official must have been
“aware of facts from which the inference could be draft that a substantial
risk of serious harm exists,” and he must have “draw[n] th[at] inference.”
Id. (quoting Farmer, 511 U.S. at 837). But liability does not attach if the prison
official takes reasonable measures to abate the known risk. Id. (citing
Farmer, 511 U.S. at 844).
At the early pleading stage, the Court finds that Plaintiff sufficiently
alleges an Eighth Amendment deliberate indifference claim against these
defendants based on the allegations that they knew of the serious risk of
danger to Plaintiff’s physical safety. Defendants placed Plaintiff in the
unpalatable position of choosing between risking his life in general
population and repeatedly receiving conduct reports for disobeying orders
and being forced into the conditions restrictive housing. As such, Plaintiff
may proceed on an Eighth Amendment deliberate indifference claim
against these defendants based on their failure to protect Plaintiff from a
known serious risk of danger. The Court notes that it is somewhat skeptical
that this large number of defendants were personally involved in Plaintiff’s
deprivation; going forward Plaintiff must be able to specifically show how
each defendant was personally involved. However, at the liberal pleading
stage, the Court finds that Plaintiff has just passed the hurdle to proceed
against this large group of defendants.
Second, the Court finds that Plaintiff may proceed on a First
Amendment retaliation claim against Defendants Cushing, Swiekatowski,
Kind, Haese, and Radtke. To prevail on a retaliation claim, Plaintiff must
ultimately show that: “(1) he engaged in activity protected by the First
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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 impose the deprivation.” Hawkins v. Mitchell, 756 F.3d 983, 996
(7th Cir. 2014).
Here, Plaintiff alleges that these defendants retaliated against him
for filing a PREA grievance against guards at WCI. Cushing was friends
with those guards and Plaintiff alleges that Defendants Cushing,
Swiekatowski, Kind, Haese, and Radtke intended to make sure Plaintiff’s
needs were not met at GBCI as a result of the complaints. It is well
established that a prisoner’s ability to file complaints is protected by the
First Amendment. See Hughes v. Scott, 816 F.3d 955, 956 (7th Cir. 2016). As
for the second element, Plaintiff alleges suffering deprivations—being
denied protective custody for the threats against his life and instead being
forced to receive conduct reports and remain in restrictive housing—that,
we can infer, would likely dissuade a person of ordinary firmness from
exercising further First Amendment activity. See Gomez v. Randle, 680 F.3d
859, 866 (7th Cir. 2012) (prison transfer likely to deter. At the pleadings
stage, the Court therefore finds these allegations sufficient to state a First
Amendment retaliation claim against Defendants Cushing, Swiekatowski,
Kind, Haese, and Radtke.
Third, Plaintiff may proceed on an Eighth Amendment conditions of
confinement claim against Lt. Matushak and Rozmarynowski for
intentionally and repeatedly placing Plaintiff in feces-covered cells. A
prisoner’s claim of unconstitutional conditions of confinement is analyzed
under the Eighth Amendment’s cruel and unusual punishment clause. See
Farmer, 511 U.S. at 834. A prisoner is entitled to live in conditions that do
not amount to “punishment.” Bell v. Wolfish, 441 U.S. 520, 535 (1979).
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Detainees are entitled to be confined under humane conditions that provide
for their “basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
“The Constitution does not mandate comfortable prisons, but neither does
it permit inhumane ones[.]” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996).
To establish a constitutional violation with respect to an inmate’s
living conditions, he must be able to demonstrate both: (1) the conditions
were objectively so adverse that they deprived him “of the minimal
civilized measure of life’s necessities,” and (2) the defendants acted with
deliberate indifference with respect to the conditions. Townsend v. Fuchs, 522
F.3d 765, 773 (7th Cir. 2008) (quoting Farmer, 511 U.S. at 834). “Life’s
necessities include shelter, heat, clothing, sanitation, and hygiene items.”
Woods v. Schmeltz, No. 14-CV-1336, 2014 WL 7005094, at *1 (C.D. Ill. Dec. 11,
2014) (citing Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006)); see also Budd
v. Motley, 711 F.3d 840, 842–43 (7th Cir. 2013). Plaintiff alleges that he was
repeatedly placed in feces-covered cells without running sinks or toilets as
a form of punishment as opposed to any legitimate penological purpose. At
the pleadings stage, the Court finds the allegations sufficient to proceed on
an Eighth Amendment conditions of confinement claim against Lt.
Matushak and Rozmarynowski.
Finally, the Court finds that Plaintiff may not proceed on any claims
against Defendants DeGroot, Grabowski, Steisel, Utter, Davidson, Hompe,
and O’Donnell. For a prison official to be personally liable, he or she must
have participated in some way with the alleged constitutional violation.
Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“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 deprivation.”) (internal quotation marks
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and citation omitted); see also Palmer v. Marion County, 327 F.3d 588, 594 (7th
Cir. 2003). As to Defendants DeGroot, Grabowski, Steisel, Utter, Davidson,
Hompe, and O’Donnell, Plaintiff fails to state a claim against them for their
actions in relation to his inmate grievances. Generally, the denial of a
grievance “by persons who otherwise did not cause or participate in the
underlying conduct states no claim.” Owens v. Hinsley, 635 F.3d 950, 953 (7th
Cir. 2011); see also George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “If there
is ‘no personal involvement by the warden [in an inmate's medical care]
outside the grievance process,’ that is insufficient to state a claim against
the warden.” Neely v. Randle, No. 12 C 2231, 2013 WL 3321451, at *3 (N.D.
Ill. June 13, 2013) (quoting Gevas v. Mitchell, 492 F. App’x 654, 660 (7th Cir.
2012)). As such, the Court will dismiss Defendants DeGroot, Grabowski,
Steisel, Utter, Davidson, Hompe, and O’Donnell from this action for the
failure to state a claim against them.
A preliminary injunction is “an extraordinary and drastic remedy,
one that should not be granted unless the movant, by a clear showing,
carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972
(1997). To obtain preliminary injunctive relief, whether through a TRO or
preliminary injunction, the plaintiff must show that (1) his underlying case
has some likelihood of success on the merits, (2) no adequate remedy at law
exists, and (3) he will suffer irreparable harm without the injunction. Wood
v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). A preliminary injunction is not
appropriate to guard against the “mere possibility of irreparable injury.”
Orr v. Shicker, 953 F.3d 490, 501 (7th Cir. 2020) (citing Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008)). If the plaintiff can establish those
three factors, the court must balance the harm to each party and to the
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public interest from granting or denying the injunction. See Wood, 496 F.3d
at 622; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v. Salazar,
196 F.3d 809, 813 (7th Cir. 1999).
In the context of prisoner litigation, the scope of a court’s authority
to issue an injunction (including a TRO) is circumscribed by the PLRA. See
Westefer v. Neal, 682 F.3d 679, 683 (7th Cir. 2012). Under the PLRA,
preliminary injunctive relief “must be narrowly drawn, extend no further
than necessary to correct the harm the court finds requires preliminary
relief, and be the least intrusive means necessary to correct that harm.” 18
U.S.C. §3626(a)(2); see also Westefer, 682 F.3d at 683 (noting the PLRA
“enforces a point repeatedly made by the Supreme Court in cases
challenging prison conditions: prisons officials have broad administrative
and discretionary authority over the institutions they manage” (internal
quotation marks and citation omitted)).
Based on the very limited information before the Court, it is unclear
if Plaintiff can demonstrate a likelihood of success on a claim that he is not
receiving adequate protection from other inmates in violation of the Eighth
Amendment or that he will be irreparably injured if he is not granted
immediately relief while this case is pending. Therefore, the Court will
order a response from GBCI Warden Stevens before taking further action
on the request for a preliminary injunction. The Court will deny Plaintiff’s
initial motions for injunctive relief, ECF Nos. 9, 11, and will order
Defendant Stevens to respond to the most recent motion for a preliminary
injunction, ECF No. 15, as soon as possible but no later than December 4,
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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 Kind, Cushing, Swiekatowski, Haese, Radtke, Pagel, Wasielewski,
Kent, Rozmarynowski, Wickman, Mejia, Eisinger, VanLanen, Cole, Schultz,
Perttu, Hoffman, Hove, Cooper, Greenwood, Carr, Hamilton, Pyrenberg,
Berg, RN Matushak, Vogels, Dorsey, Wertel, Heil, Hansen, Deyoung,
Schornack, Koehler, Johnson-Debauche, Lt. Matushak, Stevens, and Baier
for their failure to protect Plaintiff from a known serious risk of danger.
Claim Two: First Amendment retaliation claim against Cushing,
Swiekatowski, Kind, Haese, and Radtke.
Claim Three: Eighth Amendment conditions of confinement claim
against Lt. Matushak and Rozmarynowski for intentionally and repeatedly
placing Plaintiff in feces-covered cells.
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.
IT IS ORDERED that Defendants DeGroot, Grabowski, Steisel,
Utter, Davidson, Hompe, and O’Donnell be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that GBCI Warden Stevens file and
serve a response to the most recent motion for a preliminary injunction, ECF
No. 15, as soon as possible but no later than December 4, 2023, with
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supporting documentation and declarations from staff as necessary,
addressing whether Plaintiff is currently at risk of harm from other inmates,
why he is in restrictive housing as opposed to protective custody, and what
steps, if any, are being taken to protect him;
IT IS FURTHER ORDERED that Plaintiff’s prior motions for
preliminary relief, ECF Nos. 9, 11, be and the same are hereby DENIED as
reconsideration, ECF No. 26, be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion to expedite, ECF
No. 40, 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
transmitted to the Wisconsin Department of Justice for service on
Defendants Kind, Cushing, Swiekatowski, Haese, Radtke, Pagel,
VanLanen, Cole, Schultz, Perttu, Hoffman, Hove, Cooper, Greenwood,
Carr, Hamilton, Pyrenberg, Berg, RN Matushak, Vogels, Dorsey, Wertel,
Heil, Hansen, Deyoung, Schornack, Koehler, Johnson-Debauche, Lt.
Matushak, Stevens, and Baier;
IT IS FURTHER ORDERED that under the informal service
agreement, those 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; and
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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.
Dated at Milwaukee, Wisconsin, this 13th day of November, 2023.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
Page 17 of 18
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
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
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.
Page 18 of 18
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