Pacheco v. Bouzek et al

Filing 7

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 1/3/2025. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; agency having custody of Plaintiff to COLLECT the bal ance of the filing fee as specified. Defendants Sgt Botvin and CO Funk are DISMISSED from this action. Plaintiff may PROCEED on an Eighth Amendment deliberate indifference claim and an Eighth Amendment conditions of confinement claim against speci fied Defendants. Copies of Plaintiff's Complaint and this Order to be electronically SENT to the Wis DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. Defendants to FILE any exhaustion-related challenges in a mo tion for summary judgment within 45 days. Motions to dismiss must comply with specified requirements. See Order. (cc: all counsel, via mail to Luis Antonio Pacheco with prisoner/pro se guides and to Warden (order only) at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LUIS ANTONIO PACHECO,
Plaintiff,
v.

Case No. 24-CV-1359-JPS

CAPT. BOUZEK, SGT. BOTVIN, C.O.
STAPLES, C.O. ROJAS, C.O.
HERCENRODN, C.O. FUNK, and
KAYLA MIEDEMA,

ORDER

Defendants.

Plaintiff Luis Antonio Pacheco, 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 motion for an extension of time, as well as
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 November 4, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $12.53. ECF No. 6. Plaintiff paid that fee on November

27, 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 Capt. Bouzek
(“Bouzek”), Sgt. Botvin (“Botvin”), C.O. Staples (“Staples”), C.O. Rojas
(“Rojas”), C.O. Hercenrodn (“Hercenrodn”), C.O. Funk (“Funk”), and
Kayla Miedema (“Miedema”). ECF No. 1 at 1. On July 24, 2024, at
approximately 10:30 a.m., Plaintiff was released from bed restraint for selfharming the previous day. Id. Plaintiff was placed in a shower cell while
Staples prepared his cell. Id. At 2:30 p.m., Hercenrodn and Rojas escorted
Plaintiff to his cell. Id. Upon arriving at his cell, Plaintiff noticed that Staples
placed all of his TLU property in a brown bag in his cell. Id. The bag
contained paperwork, books, religious items, a bed sheet, and socks—none
of which were allowed on clinical observation. Id. Hercenrodn and Rojas
made no effort to remove the prohibited property. Id.
At around 5:20 p.m., Plaintiff ripped the bed sheet into strips and
attempted to kill himself. Id. Staff found Plaintiff unconscious and Bouzek
ordered an emergency cell entry to save Plaintiff. Id. Plaintiff was taken to
HSU for medical care. Id. Afterwards, Plaintiff was placed in a holding cell.
Id. Bouzek and his staff never strip-searched Plaintiff. Id. at 2. Bouzek called
Miedema to determine if another bed restraint placement was necessary.
Miedema decided not to place Plaintiff, and he was therefore placed back
in cell A227. Id. Plaintiff then took the two bedsheet strips that were tied to
his waist and tied them around his neck in an attempt to kill himself. Id.

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Staff entered his cell, and Plaintiff was taken to HSU for medical attention.
Id.
Once medically cleared, Bouzek took Plaintiff for a strip search Id.
After performing the search, Bouzek left to call Miedma. Id. Bouzek failed
to place Plaintiff in handcuffs before walking away. Id. Miedma ordered
Plaintiff to immediately be placed in bed restraints to prevent further selfharm. Id. Bouzek and his staff ignored this order. Id. At approximately 7:50
p.m., Plaintiff used the tether cuff on the door to cut himself seven times.
Id. Plaintiff called out to Funk that he had self-harmed and needed to see
HSU. Id. Botvin cuffed Plaintiff and medical staff cleaned Plaintiff’s
wounds. Id.
At approximately 9:15 p.m., Plaintiff was placed in bed restraints. Id.
Ten minutes later, Plaintiff’s back began to burn, and he could smell OC
spray coming off the bed. Id. Plaintiff told multiple COs that his back was
burning, but he received no relief. Id. Around 1:30 a.m., Plaintiff told
Bouzek about his back and asked for a decontamination shower. Plaintiff
was placed back in restraints until 9:15 a.m. the following morning when
he was released and able to take a shower. Id.
2.3

Analysis

First, the Court finds that Plaintiff may proceed on an Eighth
Amendment deliberate-indifference claim against Defendants Bouzek,
Staples, Rojas, Hercenrodn, and Miedma 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
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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
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 Bouzek, Staples, Rojas, Hercenrodn, and
Miedma for were aware that he wanted to self-harm and failed to
appropriately act. Plaintiff further alleges that after these defendants were
aware of Plaintiff’s condition, Plaintiff engaged in self-harm. At this early
stage, the Court will allow Plaintiff to proceed on an Eighth Amendment
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claim against Defendants Bouzek, Staples, Rojas, Hercenrodn, and Miedma
for their deliberate indifference to Plaintiff’s risk of self-harm. The Court
does not find, however, that Plaintiff states a claim against Botvin or Funk.
The only allegations against these defendants are that Plaintiff told Funk he
had self-harmed and that Botvin cuffed him and took him for medical
attention. As such, the Court will dismiss Funk and Botvin for the failure to
state a claim against them.
Second, the Court finds that Plaintiff may proceed on an Eighth
Amendment conditions of confinement claim against Bouzek and Doe
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 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).
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Plaintiff alleges that Bouzek and other unnamed officers were aware
that Plaintiff was suffering from OC contamination and left him for almost
nine hours without any relief. At the pleadings stage, the Court finds these
allegations sufficient to proceed on an Eighth Amendment conditions of
confinement claim against Bouzek and Doe defendants.1 The Court will
provide Plaintiff the opportunity to identify the Does through the course of
discovery.
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 deliberate-indifference claim
against Defendants Bouzek, Staples, Rojas, Hercenrodn, and Miedma for
their indifference to the serious risk of Plaintiff’s self-harm.
Claim Two: Eighth Amendment conditions of confinement claim
against Defendants Bouzek and Doe defendants.
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.

The Clerk of Court is directed to add the Doe defendants to the docket
accordingly.
1

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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 Defendants Botvin and Funk 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 Bouzek,
Staples, Rojas, Hercenrodn, and Miedma;
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
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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 $337.47 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
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 3rd 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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