Tonyan v. Kirejrcyk et al

Filing 9

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 1/3/2025. 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is GRANTED; 7 Plaintiff's Second Motion for Leave to Pr oceed Without Prepayment of the Filing Fee is DENIED as moot; agency having custody of Plaintiff to COLLECT the balance of the filing fee as specified. By 1/24/2025, Plaintiff to FILE an amended complaint as provided; failure to timely do so will result in dismissal of this action. (cc: all counsel, via mail to Jonathan Oliver Tonyan with prisoner amended complaint form and prisoner/pro se guides and to Warden (order only) at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JONATHAN OLIVER TONYAN,
Plaintiff,
v.

Case No. 24-CV-1373-JPS

TYLER KIREJRCYK, KYHEIM
OUTLAW, MICHAEL MAYER, and
RACINE CORRECTIONAL
INSTITUTION,

ORDER

Defendants.

Plaintiff Jonathan Oliver Tonyan, an inmate confined at Racine
Correctional Institute, filed a pro se complaint under 42 U.S.C. § 1983
alleging that the defendants violated his constitutional rights. ECF No. 1.
This Order resolves Plaintiff’s motions for leave to proceed without
prepaying the filing fee and screens his complaint.
1.

MOTIONS 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 14, 2024, the Court ordered Plaintiff to pay an initial
partial filing fee of $5.21. Plaintiff paid that fee on December 17, 2024. The

Court will grant Plaintiff’s motion for leave to proceed without prepaying
the filing fee. ECF No. 3. He must pay the remainder of the filing fee over
time in the manner explained at the end of this Order. The Court will deny
as moot Plaintiff’s second motion for leave to proceed without prepaying
the filing fee. ECF No. 7.
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).

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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
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 alleges that he was in the dayroom playing cards with two
other inmates on June 2, 2024. ECF No. 1 at 2. One of the inmates, Defendant
Tyler Kirejrcyk (“Kirejrcyk”) got mad at Plaintiff and punched him in the
nose and caused Plaintiff to bleed. Id. at 2–3. Plaintiff did nothing wrong.
Id. at 3. Approximately five to ten minutes after Plaintiff’s nose stopped
bleeding, Plaintiff asked Defendant Kyheim Outlaw (“Outlaw”) for
medical help. Id. Outlaw told Plaintiff he would have to wait until Monday,
but that never happened. Id. Outlaw failed to get Plaintiff medical help. Id.
On June 15, 2024, Defendant Security Director Michael Mayer put
Plaintiff in segregation for being a security risk. Id. Plaintiff was told to sign
a ticket for “disruptive 15 days total.” Id. Plaintiff maintains there was no
need for punishment because Plaintiff was a victim and did not do anything
wrong. Plaintiff never got a copy of the ticket and was never a security risk.
Id.
2.3

Analysis

First, the Court finds that Plaintiff does not state an Eighth
Amendment claim against any defendants for their deliberate indifference

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to his serious medical needs. 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).
Here, Plaintiff may be able to state an Eighth Amendment claim;
however, he fails to allege facts as to how any defendants were involved in
denying him care for a serious medical need. Plaintiff alleges that he sought
medical help from Outlaw after his nose stopped bleeding. Outlaw told
Plaintiff he would have to wait until Monday, which appears to have been
the following day. Inmates, like most of the population, wait for medical
treatment based on a medical need. As currently alleged, Plaintiff’s
allegations do not show that he needed immediate medical attention that
could not wait one day. Further, it is unclear how, if at all, Outlaw was
involved with Plaintiff following the incident in the dayroom. It is unclear

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if Plaintiff had any further interaction with Outlaw after his initial request
for medical attention. As such, the Court finds that Plaintiff’s complaint
currently fails to state a deliberate indifference claim against any
defendants.
The Court also finds that Plaintiff may not proceed against any
defendants for a Fourteenth Amendment claim for a deprivation of liberty
without due process. A prisoner challenging the process he was afforded in
a prison disciplinary proceeding must meet two requirements: (1) he has a
liberty or property interest that the state has interfered with; and (2) the
procedures he was afforded upon that deprivation were constitutionally
deficient. Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007) (citing Rowe v.
DeBruyn, 17 F.3d 1047, 1053 (7th Cir. 1994)).
“A prisoner’s liberty interest, and incumbent entitlement to
procedural due process protections, generally extends only to freedom
from deprivations that ‘impose[ ] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prisoner life.” Lekas v. Briley,
405 F.3d 602, 608 (7th Cir. 2005) (quoting Sandin v. Conner, 515 U.S. 472, 483–
84 (1995)). In the absence of an “atypical and significant” deprivation, the
procedural protections of the Due Process Clause are not triggered. Id.
Disciplinary segregation can trigger due process protections. Marion v.
Columbia Correctional Inst., 559 F.3d 693, 697 (7th Cir. 2009) (citations
omitted). When making the determination whether an inmate is entitled to
such protections, courts analyze “the combined import of the duration of
the segregative confinement and the conditions endured by the prisoner
during that period.” Id. If conditions in segregation are significantly harsher
than those in the normal prison environment, then a liberty interest may
arise even when the duration of the segregation, standing alone, would not

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trigger such an interest. Id. at 697–98. On the one hand, “six months of
segregation is ‘not such an extreme term’ and, standing alone, would not
trigger due process rights.” Id. at 698 (quoting Whitford v. Boglino, 63 F.3d
527, 533 (7th Cir. 1995)). On the other end of the spectrum, transfer to a
maximum-security prison and placement in segregated confinement for an
indefinite duration where virtually all sensory and environmental stimuli
are denied, little human contact is permitted, and prisoners otherwise
eligible for parole are disqualified from parole eligibility, taken together,
impose an atypical and significant hardship within the correctional context.
Id. at 697 (citing Wilkinson v. Austin, 549 U.S. 209, 224 (2005)).
Once a liberty or property interest has been invoked, the Court looks
to what process was due. Prison disciplinary hearings satisfy procedural
due process requirements where an inmate is provided: (1) written notice
of the charge against the prisoner twenty four (24) hours prior to the
hearing; (2) the right to appear in person before an impartial body; (3) the
right to call witnesses and to present physical/documentary evidence, but
only when doing so will not unduly jeopardize the safety of the institution
or correctional goals; and (4) a written statement of the reasons for the
action taken against the prisoner. See Wolff v. McDonnell, 418 U.S. 539, 563–
69 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). Not only must
the requirements of Wolff be satisfied, but the decision of the disciplinary
hearing board must be supported by “some evidence.” Black v. Lane, 22 F.3d
1395, 1402 (7th Cir. 1994).
Here, Plaintiff’s complaint does not contain facts showing that
Defendants interfered with a liberty interest. Plaintiff alleges generally that
he was in segregation for fifteen days following the unwarranted conduct
report, but he does not elaborate on any of the conditions he experienced

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during that time. On these facts alone, the Court cannot determine that
Plaintiff suffered an atypical and significant deprivation. See Marion, 559
F.3d at 698. Accordingly, based on the allegations in Plaintiff’s complaint,
the Court cannot determine that Plaintiff had a protected liberty interest.
As such, Plaintiff may not proceed on a due process claim.
Finally, the Court notes that Plaintiff brings claims against non-state
actors that he cannot bring § 1983 claims against. “When a plaintiff brings
a section 1983 claim against a defendant who is not a government official
or employee, the plaintiff must show that the private entity acted under the
color of state law.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 822
(7th Cir. 2009). Here, no facts suggest that Kirejrcyk, another inmate, was
acting under the color of state law. Similarly, Plaintiff cannot bring claims
against Racine Correctional Institution because it is not a person for the
purposes of § 1983. See Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir.
2012) (“[T]he district court was correct that, in listing the Knox County Jail
as the sole defendant, [Plaintiff] named a non-suable entity.”).
The Court will provide Plaintiff the opportunity to amend his
complaint. Plaintiff must amend his complaint on or before January 24,
2025. When writing his amended complaint, Plaintiff should provide the
Court with enough facts to answer the following questions: (1) Who
violated his constitutional rights?; (2) What did each person do to violate
his rights?; (3) Where did each person violate his rights?; and (4) When did
each person violate his rights? Plaintiff’s amended complaint does not need
to be long or contain legal language or citations to statutes or cases, but it
does need to provide the Court and each Defendant with notice of what
each Defendant allegedly did or did not do to violate his rights.

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The Court is enclosing a copy of its amended complaint form and
instructions. Plaintiff must list all of the defendants in the caption of his
amended complaint. He should use the spaces on pages two and three to
allege the key facts that give rise to the claims he wishes to bring, and to
describe which defendants he believes committed the violations that relate
to each claim. If the space is not enough, Plaintiff may use up to five
additional sheets of paper.
Plaintiff is advised that the amended complaint must bear the docket
number assigned to this case and must be labeled “Amended Complaint.”
The amended complaint supersedes the prior complaint and must be
complete in itself without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056 (7th
Cir. 1998). In Duda, the appellate court emphasized that in such instances,
the “prior pleading is in effect withdrawn as to all matters not restated in
the amended pleading.” Id. at 1057 (citation omitted). If the amended
complaint is received, it will become the operative complaint in this action,
and the Court will screen it in accordance with 28 U.S.C. § 1915A.
3.

CONCLUSION
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without

prepaying the filing fee, ECF No. 3, be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s second motion for leave
to proceed without prepaying the filing fee, ECF No. 7, be and the same is
hereby DENIED as moot;
IT IS FURTHER ORDERED that the complaint fails to state a claim;
IT IS FURTHER ORDERED that Plaintiff may file an amended
complaint that complies with the instructions in this Order on or before

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January 24, 2025. If Plaintiff files an amended complaint by the deadline,
the Court will screen the amended complaint under 28 U.S.C. § 1915A. If
Plaintiff does not file an amended complaint by the deadline, the Court will
dismiss this case based on his failure to state a claim in his original
complaint and will issue him a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that the Clerk’s Office mail Plaintiff a
blank prisoner amended complaint form and a copy of the guides entitled
“Answers to Prisoner Litigants’ Common Questions” and “Answers to Pro
Se Litigants’ Common Questions,” along with this Order;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $344.79 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; and
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where Plaintiff is confined.
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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