Gladney v. Silva et al

Filing 10

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 9/24/2024. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED. 9 Plaintiff's Motion to Notify the Of ficer in Charge of Remaining Balance of PLRA Filing Fee to be Deducted from Plaintiff's Release Account is GRANTED; Plaintiff may PAY the remaining balance of the filing fee from his release account. Defendant Tonia Moon is DISMISSED from thi s action. Plaintiff may PROCEED on an Eighth Amendment conditions of confinement claim against the remaining Defendants. 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 Myron A Gladney with prisoner/pro se guides and to Warden (order only) at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MYRON A. GLADNEY,
Plaintiff,
v.

Case No. 24-CV-764-JPS

NATHANIEL SILVA, SGT. NELSON,
JOHN DOE, KYLE DEMERS,
MARCO STEPHENSON, YANA
PUSICH, TONIA MOON and
NATHAN PACH,

ORDER

Defendants.

Plaintiff Myron A. Gladney, an inmate confined at Waupun
Correctional Institution, filed a pro se complaint under 42 U.S.C. § 1983
alleging that Defendant violated his constitutional rights. ECF No. 1. This
Order screens Plaintiff’s complaint and resolves his motion for leave to
proceed without prepaying the filing fee and motion to notify the officer in
charge of remaining balance of PLRA filing fee to be deducted from
Plaintiff’s release account.
1.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYING
THE FILING FEE
The Prison Litigation Reform Act (“PLRA”) applies to this case

because Plaintiff was a prisoner when he filed his complaint. See 28 U.S.C.
§ 1915(h). The PLRA allows the Court to give a prisoner plaintiff the ability
to proceed with his case without prepaying the civil case filing fee. Id.
§ 1915(a)(2). When funds exist, the prisoner must pay an initial partial filing

fee. 28 U.S.C. § 1915(b)(1). He must then pay the balance of the $350 filing
fee over time, through deductions from his prisoner account. Id.
On July 12, 2024, the Court ordered Plaintiff to pay an initial partial
filing fee of $39.02. ECF No. 8. Plaintiff paid that fee on August 6, 2024. The
Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 2. The Court will also grant Plaintiff’s motion to
notify the officer in charge of remaining balance of PLRA filing fee to be
deducted from Plaintiff’s release account. ECF No. 9.
While it is true that the Court has the authority to order
disbursements from a prisoner’s release account for payment of an initial
partial filing fee, see, e.g., Doty v. Doyle, 182 F. Supp. 2d 750, 751 (E.D. Wis.
2002), it is less clear that the court can authorize a prisoner to tap into his
release account to pay current (or future) litigation costs. “Nothing in the
[PLRA] can be interpreted as congressional intent that prisoners deplete
savings or release account balances in order to pay off their filing fee debts.”
Wilson v. Anderson, No. 14-CV-0798, 2014 WL 3671878, at *3 (E.D. Wis. July
23, 2014) (declining to order that a prisoner’s full filing fee be paid from his
release account, “[g]iven the [DOC’s] rationale for segregating funds into a
release account” and the absence of any statutory authority compelling the
court to do so) (citations omitted).
Notwithstanding the foregoing, however, the Court concludes that
under the circumstances of this case, such authorization should be given.
Plaintiff notes that he is serving a mandatory life sentence and that his first
opportunity for parole is December 18, 2071. ECF No. 9 at 4. Plaintiff also
notes that he is not a litigious filer and that he currently has only one civil
lawsuit pending. Id. As such, and specifically under these circumstances,

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the Court will grant Plaintiff’s motion to pay the remainder of the filing fee
from his release account.
2.

SCREENING THE COMPLAINT
2.1

Federal Screening Standard

Under the 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 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
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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)).
2.2

Plaintiff’s Allegations

Plaintiff brings this case against Defendants Nathaniel Silva
(“Silva”), Sgt. Nelson (“Nelson”), John Doe (“Doe”), Kyle Demers
(“Demers”), Marco Stephenson (“Stephenson”), Yana Pusich (“Pusich”),
Tonia Moon (“Moon”), and Nathan Pach (“Pach”). ECF No. 1 at 1. Plaintiff
alleges that he was denied the minimal amount of water needed for
drinking and sanitation between May 9, 2023 and May 11, 2023. Id. at 4.
Plaintiff was housed in the restrictive housing unit as a result of a conduct
report. Id. On May 9, 2023, while in his cell, Plaintiff engaged in exercise
activity for one hour. Id. Plaintiff’s exercise routine consisted of 150
pushups, 150 squats, 100 sit-ups, and 150 jumping jacks. Id. at 4–5. After
completing the exercise, Plaintiff was sweating profusely, he felt dizzy, and
he was extremely thirsty. Id. at 5. Plaintiff went to the sink to drink water,
but no water came out. Id. Plaintiff informed Silva that the was not working
in his cell and that he was extremely thirsty. Id. Plaintiff showed Plaintiff
that his sink would not work; Silva told the command station to reset
Plaintiff’s sink. Id.
At approximately 2:50 p.m., Plaintiff pressed the emergency button
to tell Nelson that the water in his cell was not working. Id. Nelson
attempted to reset the sink and asked Plaintiff if the water was working;
Plaintiff responded it was not. Id. at 5–6. At approximately 3:40 p.m.,
Plaintiff told Silva that the water still was not working; Silva responded that
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he would put in a work order and that he had told the sergeant about the
issue. Id. at 6. Plaintiff received a milk with his dinner; however, at
approximately 3:50 p.m., he became overwhelmed with nausea, and he
vomited on the floor. Id. At 3:50 p.m., he pressed his emergency button and
said he had vomited on the floor, was feeling sick and dehydrated, and that
his water was still not working. Id. Nelson responded that he was “working
on it” and shut off the intercom. Id.
Approximately three hours later, Plaintiff vomited a second time
and felt increasingly dizzy. Id. Plaintiff pressed the emergency button again
and repeated his issue. Id. at 6–7. Nelson again responded that a work order
had been put in and that it would likely be fixed in the morning. Id. at 7.
Plaintiff then wrote an interview/request to the sergeant to make him or her
aware of the water issue. Id. Plaintiff never received any response. Id.
On May 10, 2024, Plaintiff ate a bowl of cereal with milk for breakfast.
Id. At approximately 9:45 a.m., Plaintiff had extreme cramps and went to
the toilet to defecate. Id. While wiping himself, he accidently got feces on
his fingertips. Id. Without running water, Plaintiff was unable to wash his
hands. Id. At approximately 10:08 a.m., Plaintiff pressed the emergency
button and again told staff his issues and that his water was still not
working. Id. at 8. During lunch, with feces still on his fingertips, Plaintiff
had to drink more milk. Id. At approximately 1:45 p.m., Plaintiff
experienced more stomach cramping and had to defecate again. Id. Plaintiff
was again unable to wash his hands. Id. At approximately 3:00 p.m.,
Stephenson arrived at his cell to pass out supplies. Id. Plaintiff told
Stephenson that he had been without water for the past twenty-four hours
and that he was extremely thirsty. Id. Plaintiff showed Stephenson that the
water was not working. Id. Stephenson told Plaintiff that he would let the
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sergeant know and that Plaintiff would most likely be moved to another
cell. Id. at 8–9.
At dinner, Plaintiff still felt nauseous, he had a severe headache a
loss of appetite. He was extremely thirsty and drank his milk. Id. at 9. At
approximately 4:20 p.m., Plaintiff pressed the emergency button to
complain of extreme thirst and dehydration as a result of the water not
working. Id. Demers replied that he was aware of the situation and that a
work order was put in. Id. Later that evening, Plaintiff experienced severe
cramps and had to defecate. Again, he was unable to wash his hands. Id.
Plaintiff felt lethargic and lost consciousness when he laid down. Id. At
some point later, Plaintiff felt nauseous and felt like he was going to vomit.
Id. at 9–10. Plaintiff wrote another interview/request to the sergeant for
help. Id. at 10. Plaintiff also wrote to Pusich for help, but he received no
responses. Id.
On May 11, 2023, Plaintiff woke up with an extreme headache and
he felt dizzy and nauseous. Id. At 7:30 a.m., Plaintiff told Pach that his water
still was not working and that he had been without water for forty-two
hours. Id. Pach told Plaintiff that he would try to fix the sink. Id. At 11:00
a.m., Plaintiff told Pach that he felt sick, was dehydrated, and needed water.
Id. at 11. Pach responded that he could not fix the sink, and that Plaintiff
would probably have to be moved. Id. Plaintiff laid down to save his energy
and passed out. Id. At some point that afternoon, Plaintiff was awoken by a
plumber who was fixing his sink. Id. The plumber told Plaintiff that no one
told him about the issue until that afternoon. Id. Institute complaint
examiner Moon initially failed to accept his properly filed inmate
complaint. Id. at 12. Moon’s supervisor confirmed that Moon erred in not

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accepting the complaint. Id. Eventually, the complaint was affirmed and
Warden Hepp affirmed Plaintiff’s inmate complaint. Id.
2.3

Analysis

The Court finds that Plaintiff may proceed on an Eighth Amendment
conditions of confinement claim against

Silva, Nelson, Demers,

Stephenson, Pusich, Pach, and Doe. 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 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 lifeʹs 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). Depriving a prisoner of
drinkable and safe water constitutes an Eighth Amendment conditions of
confinement claim. Smith v. Dart, 803 F.3d 304, 313 (7th Cir. 2015).

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Here, at the early pleading stage, Plaintiff has sufficiently stated an
Eighth Amendment conditions of confinement claim against Silva, Nelson,
Demers, Stephenson, Pusich, Pach, and Doe as relates to his access to water
for drinking and sanitation. Plaintiff alleges that he was deprived of water
for over forty-two hours and that these Defendants were aware of the
situation and failed to provide him access to water. Although Plaintiff was
provided milk during this time, Plaintiff vomited the milk and still
experienced extreme symptoms as a result of the dehydration. Plaintiff also
alleges his inability to clean feces off his hands for multiple days. At the
screening stage, the Court therefore finds Plaintiff’s allegations sufficient to
proceed against Silva, Nelson, Demers, Stephenson, Pusich, Pach, and Doe
for an Eighth Amendment conditions of confinement claim.
Plaintiff may not, however, proceed against Defendant Moon. 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 and citation omitted); see also
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). 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). Moon’s involvement with Plaintiff’s prisoner grievance does not
show that she participated in the constitutional deprivation. As such, the
Court will dismiss Moon for the failure to state a claim against her.

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3.

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 conditions of confinement claim
against Defendants Silva, Nelson, Demers, Stephenson, Pusich, Pach, and
Doe for denying Plaintiff access to water.
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 Plaintiff’s motion for leave to proceed without
prepaying the filing fee, ECF No 2, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion to notify the
officer in charge of remaining balance of PLRA filing fee to be deducted
from Plaintiff’s release account, ECF No. 9, be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Plaintiff may pay the remaining
$310.98 balance of filing fee from his release account;
IT IS FURTHER ORDERED that Defendant Moon be and the same
is hereby DISMISSED from this action;

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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 Silva,
Nelson, Demers, Stephenson, Pusich, and Pach;
IT IS FURTHER ORDERED that under the informal service
agreement, those 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;
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 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.
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Wis.), or he may be deemed to have waived any argument against dismissal
and face dismissal of this matter with prejudice;
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined; 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 24th day of September, 2024.
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.
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:

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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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