Forester-Hoare v. Freeman et al
Filing
8
SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 1/28/2025. Defendants Elsinger, Perttu, Cushing, Swiekatowski, Kind, Haese, Radtke, Hove, Cooper, Greenwood, Carr, Degroot, Davidson, O'Donnell, Schultz, Ste vens, Van Lanen, Rozmarynowski, King, and Koehler are DISMISSED from this action. Plaintiff may PROCEED on an Eighth Amendment deliberate indifference claim against Defendants Freeman, Lavoie, Baier, Utter, Anders, Rivers, Stelsel, Tondkar, Tr zebiatowski, Wachholz, Bekx, Garland, and RN Matushak. Copies of Plaintiff's 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 Sean Forester-Hoare with prisoner/pro se guides)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SEAN FORESTER-HOARE,
Plaintiff,
Case No. 24-CV-557-JPS
v.
DR. FREEMAN, DR. LAVOIE, BAIER,
HANNAH UTTER, CAPT. ELSINGER,
J. PERTTU, CPT. CUSHING, CAPT.
SWIEKATOWSKI, JOHN KIND,
DEPUTY WARDEN HAESE, WARDEN
DYLON RADTKE, DR. ANDERS,
MICHAEL RIVERS, HOVE, WARDEN
COOPER, M. GREENWOOD, KEVIN
CARR, A. DEGROOT, PAULA
STELSEL, E. DAVIDSON, C.
O’DONNELL, DR. TONDKAR,
TRZEBIATOWSKI, ACP WACHHOLZ,
CAPTAIN SCHULTZ, WARDEN
STEVENS, PAUL BEKX, GARLAND,
RN MATUSHAK, CAPT. VAN
LANEN, LT. ROZMARYNOWSKI, LT.
KING, and KOEHLER,
ORDER
Defendants.
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 Defendants violated his constitutional rights. ECF No. 1.
Plaintiff paid the filing fee on May 20, 2024, and a brief stay of the case
ensued. ECF No. 6. The Court previously warned Plaintiff that it would
screen the complaint if an amended complaint was not filed. Id. As such,
this Order screens Plaintiff’s complaint.
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
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
liberally and holds them to a less stringent standard than pleadings drafted
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by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).
2.
PLAINTIFF’S ALLEGATIONS1
Plaintiff has two neuromuscular disorders. ECF No. 1 at 4. Plaintiff
suffers from shaking, seizures, reliving extreme pain from prior injuries,
and temporary paralysis. Id. His conditions can lead to dementia later in
life. Id. Plaintiff was prescribed a number of different medications for his
conditions. Id. Plaintiff had to get special approvals from the Department
of Corrections (“DOC”) to take the medications; the approval took seven
years. Id.
In January 2021, Plaintiff’s psychiatrist quit and he was transferred
to GBCI. Id. at 5. Upon arrival to GBCI, Defendant Dr. Lavoi (“Lavoi”)
cancelled his prescription for Gabapentin.
Id. The psychiatrist’s
replacement refused to increase his Artane medication and said that it
would be handled at GBCI. Id. GBCI does not have psychiatrists and
outsource this treatment via tele-health visits. Id. The tele-psych does not
have the patients’ medical files unless they are requested. Id.
On February 13, 2021, Defendant Dr. Freeman (“Freeman”) saw
Plaintiff via tele-visit. Id. Freeman has policies about certain medication,
regardless of whether a patient needs them or not. Id. Freeman stated at the
beginning of their visit that he was discontinuing Plaintiff’s Artane
medication and provided no reason. Id. at 5–6. Plaintiff explained his
medical conditions and that he needed the medication. Id. at 6. Freeman
ended Plaintiff’s medication and did not even allow him to wean off the
The Court notes that Plaintiff’s handwriting is at times extremely difficult
to read. It uses its best efforts to correctly recite his allegations.
1
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medication; this is illegal under the AMA guidelines. Id. Freeman did not
replace the medication with any alternative medication. Id.
When Staff at GBCI found out Plaintiff’s Artane was discontinued,
they put him in a feces-covered observation cell to observe the effects of
taking him off Artane. Id. Plaintiff generally alleges Defendants
Swiekatowski, RN Matushak, Elsinger, Utter, Baier, Kind, Haese, Radtke,
Lavoie, and Freeman’s involvement in this incident. Id. Per DOC policy,
using these cells was deemed cruel conditions of confinement. Id. at 7.
When Plaintiff was seen on camera suffering from shaking and seizures,
Artane was not reinstated, and he received no treatment. Id. Plaintiff
maintains this action constituted an illegal medical experiment on him. RN
Matushak tried to cover up this act even though it was caught on camera.
Id. When staff reported a bad seizure, RN Matushak would lie and say that
Plaintiff was not seizing. Id. at 8. RN Matushak made sure that Plaintiff
receive no medical help or treatment. Id.
Plaintiff sought medical help to get his medications back. Id. Plaintiff
also sought transfer to another prison because he does not believe GBCI can
adequately treat patients like him. Id. Plaintiff sent his hospital diagnosis to
all defendants and asked them to intervene. Although all defendants had
the authority to fix his problems, none granted him any relief. Id. Plaintiff
has experienced extreme pain and suffering as a result of Defendants’
actions. Id. at 11–12.
3.
ANALYSIS
The Court finds that Plaintiff may proceed against Defendants
Freeman, Lavoie, Baier, Utter, Anders, Rivers, Stelsel, Tondkar,
Trzebiatowski, Wachholz, Bekx, Garland, and RN Matushak on an Eighth
Amendment deliberate indifference claim for their indifference to Plaintiff’s
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serious 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 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 these medical defendants. Plaintiff alleges that
his medication for his serious conditions was discontinued and that
Defendants ignored his repeated pleas for help. Plaintiff alleges suffering
extreme pain and suffering as a result of Defendants’ actions. As such,
Plaintiff may proceed against Freeman, Lavoie, Baier, Utter, Anders, Rivers,
Stelsel, Tondkar, Trzebiatowski, Wachholz, Bekx, Garland, and RN
Matushak on an Eighth Amendment deliberate indifference claim for their
indifference to Plaintiff’s serious medical needs.
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The Court will not, however, allow Plaintiff to proceed against the
numerous non-medical defendants. Plaintiff generally alleges that he wrote
to all named defendants seeking medical treatment. Non-medical officials
are entitled to “rely on the expertise of medical personnel” and “will
generally be justified in believing that the prisoner is in capable hands.”
Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (citing Greeno v. Daley, 414
F.3d 645, 656 (7th Cir. 2005)). It is only when a nonmedical official entirely
ignores a prisoner’s complaints or has sufficient notice of “an excessive risk
to inmate health or safety” that he may be found deliberately indifferent for
not taking action. Id. (quotation omitted). Here, whether Plaintiff needed
specific types of medications to treat his condition is not the type of obvious
issue such that non-medical personnel would have notice of an excessive
risk to Plaintiff’s safety. As such, the Court will dismiss Defendants
Elsinger, Perttu, Cushing, Swiekatowski, Kind, Haese, Radtke, Hove,
Cooper, Greenwood, Carr, Degroot, Davidson, O’Donnell, Schultz, Stevens,
Van Lanen, Rozmarynowski, King, and Koehler from this action for the
failure to state a claim against them.
Finally, the Court will not allow Plaintiff to proceed on an Eighth
Amendment conditions of confinement claim against any defendants. A
prisoner’s claim of unconstitutional conditions of confinement is analyzed
under the Eighth Amendment’s cruel and unusual punishment clause. See
Farmer v. Brennan, 511 U.S. 832, 834 (1994). A prisoner is entitled to live in
conditions that do not amount to “punishment.” Bell v. Wolfish, 441 U.S. 520,
535 (1979). 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
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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).
Here, Plaintiff alleges generally that he was subjected to unsanitary
living conditions in a feces-covered cell. However, it is unclear how long he
was subjected to these conditions, and Plaintiff does not allege that he
informed any defendants about these conditions. As such, the Court does
not find that the complaint contains sufficient facts to proceed on a
conditions of confinement claim. Further, the Court is notes that Plaintiff is
proceeding on, what may be an identical claim, in Case No. 25-CV-65
regarding his unsanitary living conditions.
2.
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: Eighth Amendment claim against Freeman, Lavoie,
Baier, Utter, Anders, Rivers, Stelsel, Tondkar, Trzebiatowski, Wachholz,
Bekx, Garland, and RN Matushak for their deliberate indifference to
Plaintiff’s serious medical needs.
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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 Defendants Elsinger, Perttu, Cushing,
Swiekatowski, Kind, Haese, Radtke, Hove, Cooper, Greenwood, Carr,
Degroot,
Davidson,
O’Donnell,
Schultz,
Stevens,
Van
Lanen,
Rozmarynowski, King, and Koehler be and the same are hereby
DISMISSED from this action;
IT IS FURTHER ORDERED that under an informal service
agreement between the Wisconsin Department of Justice and this Court, a
copy of the complaint and this Order have been electronically transmitted
to the Wisconsin Department of Justice for service on Defendants Freeman,
Lavoie, Baier, Utter, Anders, Rivers, Stelsel, Tondkar, Trzebiatowski,
Wachholz, Bekx, Garland, and RN Matushak;
IT IS FURTHER ORDERED that under the informal service
agreement, Defendants shall file a responsive pleading to the 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;
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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 she intends to
move to dismiss the complaint, and Plaintiff should strongly consider 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 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; 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 28th day of January, 2025.
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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