Vargas, Conrad v. Mann, R. et al

Filing 8

ORDER on Leave to Proceed: Plaintiff granted leave to proceed against Defendants Bonner, Barry Clark, Robert Mann, Minshall. Leave to proceed denied and case dismissed against Lizzie Tegels. Case dismissed against John and Jane Does. The remain der of plaintiff's complaint is DISMISSED. Plaintiff may have until January 9, 2017, to submit a proposed amended complaint (1) better explaining his claims against defendants Jodi Dougherty, Christopher Bruesgen, Charles Facktor, and Cindy O& #039;Donnell; and (2) showing whether he has complied with Wisconsin's notice-of-claim statute. Service of the complaint is STAYED pending receipt and screening of plaintiff's amended complaint. Signed by District Judge James D. Peterson on 12/19/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

CONRAD LEE VARGAS,
Plaintiff,
v.
OPINION & ORDER
ROBERT MANN, BARRY CLARK, SGT. MINSHALL,
MR. BONNER, LIZZIE TEGELS, JODI DOUGHERTY,
CHRISTOPHER BRUESGEN, CHARLES FACKTOR,
CINDY O’DONNELL, and JOHN/JANE DOES,

16-cv-565-jdp

Defendants.
Plaintiff Conrad Lee Vargas, a state of Wisconsin inmate currently confined at the
Chippewa Valley Correctional Treatment Facility, brings this lawsuit alleging that he was
severely injured while working in the welding department at the Jackson Correctional
Institution. Vargas has made an initial partial payment of the filing fee, as previously directed
by the court.
The next step in this case is to screen the complaint. In doing so, I must dismiss any
portion that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law cannot be sued for money
damages. 28 U.S.C. §§ 1915 and 1915A. Because Barber is a pro se litigant, I must read his
allegations generously. Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam).
After reviewing the complaint with these principles in mind, I conclude that Vargas
states Eighth Amendment claims against several defendants for making him use unsafe
equipment. I will give him a short time to amend his complaint to better explain his other
claims and to show that he has complied with Wisconsin’s notice-of-claim statute, which is a
requirement for him to bring state law claims in this lawsuit.

ALLEGATIONS OF FACT
Plaintiff Conrad Lee Vargas was a “maintenance worker” in the welding department at
the Jackson Correctional Institution (JCI). Vargas was severely injured “due to faulty/broken
equipment”: a tendon in his thumb was severed in an accident. Vargas had surgery, but his
thumb is now disfigured and he remains in severe pain and emotional distress.
Defendants Barry Clark, Sgt. Minshall, Robert Mann, and Mr. Bonner were
responsible for maintaining the safety of the equipment Vargas worked with but they failed
to update or fix it.
Vargas filed an inmate grievance about the incident, but defendants Jodi Dougherty,
Christopher Bruesgen, Charles Facktor, and Cindy O’Donnell denied his grievance and
appeals.

ANALYSIS
Vargas alleges that he was injured in a workplace accident that could have been
avoided had defendants Clark, Minshall, Mann, and Bonner properly maintained the
equipment. I take him to be attempting to bring claims under both federal and state law
theories of relief.
Prison officials may violate an inmate’s Eighth Amendment right against cruel and
unusual punishment by failing to protect the inmate from a threat of harm. To state a claim
for a prison official’s failure to protect him from harm, a prisoner must allege that (1) he
faced a “substantial risk of serious harm” and (2) the prison officials identified acted with
“deliberate indifference” to that risk. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also
Brown v. Budz, 398 F.3d 904, 909 (7th Cir. 2005). Although Vargas’s allegations are

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somewhat vague, I take him to be saying that defendants Clark, Minshall, Mann, and Bonner
knew that the equipment he worked with was dangerous but did not take proper precautions
to make it safe. I conclude that Vargas states Eighth Amendment claims against these
defendants.
Vargas also names JCI Warden Lizzie Tegels as a defendant, and says that she “is
responsible for the staff doing their jobs accordingly and the safety of prisoners.” Dkt. 1, at 34. Tegels’s mere status as a supervisor is not enough to state an Eighth Amendment claims
against Tegels. Vargas cannot “rely on the doctrine of respondeat superior to hold supervisory
officials liable for the misconduct of their subordinates. . . . Rather, the supervisory officials
also must have had some personal involvement in the constitutional deprivation, essentially
directing or consenting to the challenged conduct.” Doyle v. Camelot Care Ctrs., Inc., 305 F.3d
603, 615 (7th Cir. 2002). Therefore, I will not allow Vargas to proceed on an Eighth
Amendment claim against Tegels.
Vargas alleges that defendants Dougherty, Bruesgen, Facktor, and O’Donnell denied
his grievance and appeals, stating that “[t]hey could have helped me but chose not to and
now I’m in complete pain.” Dkt. 1, at 4. These allegations are too vague to state a claim
against the defendant complaint examiners, because Vargas does not explain how they could
have helped him. It is unclear whether he is saying that he warned them about the dangerous
equipment, whether he complained about medical problems following the incident, or
something else. If Vargas complained about an event that had already occurred, a complaint
examiner does not violate the constitution by rejecting a grievance about it. See George v.
Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). If Vargas complained about a problem the
examiners could fix, he might be able to bring an Eighth Amendment claim against them, but

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without knowing more about Vargas’s complaint, I cannot allow him to procced on claims
against the examiners.
I will stay service of the complaint and give Vargas a short time to submit an amended
complaint better explaining how defendants Dougherty, Bruesgen, Facktor, and O’Donnell
could have helped him. Vargas should explain when he filed his complaint, what he
complained about, how each of the defendants responded, and how he was harmed.
Vargas names “any and all John/Jane Does” as defendants in the caption of the
complaint, but he does not mention a Jane Doe or John Doe in his allegations. If Vargas
meant to include the Doe defendants as placeholders for possible new defendants he might
discover later, it is unnecessary to include them now. Should Vargas discover that other
prison officials played a role in harming him, he should seek leave to amend his complaint to
include his new allegations about them. For now, I will dismiss the Doe defendants.
As for state law theories of recovery, I take Vargas to be saying that defendants Clark,
Minshall, Mann, and Bonner were negligent by subjecting him to dangerous equipment in
the welding department. A negligence claim under Wisconsin law includes the following four
elements: (1) a breach of (2) a duty owed (3) that results in (4) harm to the plaintiff. Paul v.
Skemp, 2001 WI 42, ¶ 17, 242 Wis. 2d 507, 625 N.W.2d 860. I conclude that Vargas’s
allegations are enough to state a negligence claim against these defendants, but there is a
problem that prevents these claims from going forward.
It is unclear from the complaint whether Vargas has complied with Wisconsin’s
notice-of-claim statute, Wis. Stat. § 893.82, by notifying the attorney general about his state
law claims. This notice is required before a plaintiff can sue defendants under these state law
theories. Section 893.82(3) states:

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Except as provided in sub. (5m), no civil action or civil
proceeding may be brought against any state officer, employee
or agent for or on account of any act growing out of or
committed in the course of the discharge of the officer’s,
employee’s or agent’s duties . . . unless within 120 days of the
event causing the injury, damage or death giving rise to the civil
action or civil proceeding, the claimant in the action or
proceeding serves upon the attorney general written notice of a
claim stating the time, date, location and the circumstances of
the event giving rise to the claim for the injury, damage or death
and the names of persons involved, including the name of the
state officer, employee or agent involved.
In his complaint, Vargas references the statute concerning notices of claim for claims
against municipal employees, Wis. Stat. § 893.80, which is not the correct statute for his
current claims. But even if he had mentioned the correct statute, that is not enough
information for me to tell whether he has met the notice-of-claim requirement. Because it is
unclear whether he means to say that that he provided the attorney general with a notice
before filing this case, I cannot allow him to proceed on his state law claims at this point.
When he amends his complaint to better explain his claims against defendants Dougherty,
Bruesgen, Facktor, and O’Donnell, he should also explain whether he has complied with the
notice-of-claim statute. If Vargas does not respond or his response is inadequate, the case will
proceed with only his federal law claims.
Finally, I note that in his request for relief, Vargas seeks “worker’s compensation since
[he is] now disabled.” Under certain circumstances, an inmate worker may be eligible for
payments similar to worker’s compensation upon release. See Wis. Stat. § 303.21
(“Compensation to injured prisoners”). Depending on the type of job Vargas had, it is also
possible that he could be entitled to compensation for his injury while he is unable to work.
See Wis. Admin. Code § 313.18(3) (“An employee injured in the performance of job duties
shall receive injury compensation pay in an amount equal to the amount the employee would

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have received had the employee worked during their recuperation.”). But these are remedies
he must seek though the prison and state of Wisconsin administrative processes; he cannot
pursue them in federal court.

ORDER
IT IS ORDERED that:
1. Plaintiff Conrad Lee Vargas is GRANTED leave to proceed on Eighth Amendment
claims against defendants Barry Clark, Sgt. Minshall, Robert Mann, and Mr.
Bonner.
2. Plaintiff is DENIED leave to proceed on an Eighth Amendment claim against
defendant Lizzie Tegels.
3. Defendants Tegels and John and Jane Does are DISMISSED from the case.
4. The remainder of plaintiff’s complaint is DISMISSED. Plaintiff may have until
January 9, 2017, to submit a proposed amended complaint (1) better explaining
his claims against defendants Jodi Dougherty, Christopher Bruesgen, Charles
Facktor, and Cindy O’Donnell; and (2) showing whether he has complied with
Wisconsin’s notice-of-claim statute.
5. Service of the complaint is STAYED pending receipt and screening of plaintiff’s
amended complaint.
Entered December 19, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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