Hohn v. Lewyn et al

Filing 7

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; agency having custody of Plaintiff to COLLECT the b alance of the filing fee as specified. Plaintiff may PROCEED against Defendants on an Eighth Amendment deliberate indifference claim. Copies of Plaintiff's Complaint and this Order to be electronically SENT to the WI DOJ for service on Defendant s, 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 Hunter Baily Hohn with prisoner/pro se guides and to Warden (order only) at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
HUNTER BAILY HOHN,
Plaintiff,
v.

Case No. 24-CV-851-JPS

LT. LEWYN, SGT. LAMBERT, C.O.
BACH, C.O. SULLIMAN, and C.O.
ROSNER,

ORDER

Defendants.

Plaintiff Hunter Bailey Hohn, an inmate confined at Waupun
Correctional Institution (“WCI”), filed a pro se complaint under 42 U.S.C.
§ 1983 alleging that Defendants violated his constitutional rights. ECF 1.
This Order resolves Plaintiff’s motion for leave to proceed without
prepaying the filing fee and screens his complaint.
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 24, 2024, the Court ordered Plaintiff to pay an initial partial
filing fee of $0.22. ECF No. 6. Plaintiff paid that fee on August 20, 2024. The
Court will grant Plaintiff’s motion for leave to proceed without prepaying

the filing fee. ECF No. 2. He must pay the remainder of the filing fee over
time in the manner explained at the end of this Order.
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 Lt. Lewyn (“Lewyn”),
Sgt. Lambert (“Lambert”), C.O. Bach (“Bach”), C.O. Sulliman (“Sulliman”),
and C.O. Roser (“Roser”). ECF No. 1 at 1. On March 31, 2024, at
approximately 3:00 p.m., Plaintiff notified staff that he was suicidal, had a
razor, and planned to cut his vein open. Id. at 2. Plaintiff showed staff the
razor. Id. Bach was doing his observation rounds between 4:30 and 5:30 p.m.
and saw Plaintiff cutting his arm. Id. Bach asked Plaintiff what it was,
Plaintiff showed Bach his arm, and Bach walked off. Id. Plaintiff showed
Lewyn his arm, and he also walked off. Id. Plaintiff’s vein was exposed at
that time.
When Lambert did his rounds, Plaintiff told Lambert that he was
cutting with an obs tray. Id. at 3. Plaintiff had blood on his chest when
Lewyn did his last rounds. Plaintiff’s window and camera also had blood
on it. Id. Plaintiff told Roser that he had been cutting, and she said
something like “okay” and walked off. Id. Plaintiff also informed Sulliman
at dinner that he had been cutting. Id. Defendants failed to perform a cell
extraction or do anything to prevent Plaintiff from cutting. Id. Plaintiff was
never seen by HSU. Id. Finally, at approximately 1:00 to 3:00 a.m., Capt.
Sankey came to Plaintiff’s cell door and provided help. Id.

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2.3

Analysis

The Court finds that Plaintiff may proceed on an Eighth Amendment
deliberate-indifference claim against Defendants Lewyn, Lambert, Bach,
Sulliman, and Roser for their indifference to the risk of Plaintiff’s self-harm.
The Eighth Amendment prohibits “cruel and unusual punishments” and
“imposes a duty on prison officials to take reasonable measures to
guarantee an inmate’s safety and to ensure that inmates receive adequate
care.” Phillips v. Diedrick, No. 18-C-56, 2019 WL 318403, at *2 (E.D. Wis. Jan.
24, 2019) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). While a prison
official’s deliberate indifference to a prisoner’s substantial risk of serious
harm violates the Eighth Amendment, not every claim by a prisoner that he
did not receive adequate care will succeed. Id. (citing Estelle v. Gamble, 429
U.S. 97, 104–05 (1976)). To prevail on such a claim, a plaintiff will have to
provide evidence showing that “(1) his medical need was objectively
serious, and (2) the defendant[] consciously disregarded this need.” Berry
v. Lutsey, 780 F. App’x 365, 368–69 (7th Cir. 2019) (citing Farmer, 511 U.S. at
834).
Prison staff have a duty to prevent inmates from causing serious
harm to themselves. Pittman ex rel. Hamilton v. County of Madison, 746 F.3d
766, 775–76 (7th Cir. 2014). Before an official will be liable for ignoring a risk
of self-harm, however, the “risk of future harm must be sure or very likely
to give rise to sufficiently imminent dangers.” Davis-Clair v. Turck, 714 F.
App’x 605, 606 (7th Cir. 2018) (internal quotation marks omitted). The
question of when that risk of future harm becomes “sure or very likely to
give rise to sufficiently imminent dangers” depends on the circumstances
of the case. See, e.g., Freeman v. Berge, 441 F.3d 543, 546–47 (7th Cir. 2006)
(explaining that “at some point,” to ensure a prisoner is not “seriously
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endangering his health,” prison officials would have a duty and right to
step in and force a prisoner on a hunger strike to take nourishment); see also
Davis v. Gee, No. 14-cv-617, 2017 WL 2880869, at *3–4 (W.D. Wis. July 6,
2017) (holding that to show a constitutional injury, the harm must present
an objectively, sufficiently serious risk of serious damage to future health;
swallowing a handful of Tylenol fails to do that).
Here, Plaintiff alleges that Lewyn, Lambert, Bach, Sulliman, and
Roser were aware that he wanted to kill himself and failed to appropriately
act. Plaintiff further alleges that after informing these defendants, Plaintiff
engaged in self-harm and caused cuts with significant bleeding. At this
early stage, the Court will allow Plaintiff to proceed on an Eighth
Amendment claim against Defendants Lewyn, Lambert, Bach, Sulliman,
and Roser for their deliberate indifference to Plaintiff’s risk of self-harm.
The Court will not, however, allow Plaintiff to proceed on a
retaliation claim. To prevail on a retaliation claim, Plaintiff must ultimately
show that: “(1) he engaged in activity protected by the First 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). While Plaintiff alleges generally that Defendants retaliated against
him, he does not provide sufficient factual detail to proceed on a First
Amendment retaliation claim. If Plaintiff wishes to proceed on this type of
claim, he may choose to file an amended complaint in an attempt to cure
the issues identified in this Order.
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):
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Claim One: Eighth Amendment deliberate-indifference claim
against Defendants Lewyn, Lambert, Bach, Sulliman, and Roser for their
indifference to the serious risk of Plaintiff’s self-harm.
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 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 Lewyn,
Lambert, Bach, Sulliman, and Roser;
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;

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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 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;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $349.78 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’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 case. If Plaintiff is transferred to
another county, state, or federal institution, the transferring institution shall
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forward a copy of this Order along with his remaining balance to the
receiving institution;
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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