Vasquez v. Raemisch
| Decision Date | 15 March 2007 |
| Docket Number | No. 06-C-743-C.,06-C-743-C. |
| Citation | 480 F.Supp.2d 1120 |
| Parties | Luis VASQUEZ, Petitioner, v. Rick RAEMISCH, Deputy Secretary; Steven B. Casperson, Administrator; Dan Westfield, Security Chief; Phil Kingston, Warden; Mike Thurmer, Deputy Warden; Marc Clements, Security Director; Don Strahota, Security Director; Marc Clements, Security Director Steven Schueler, Security Supervisor, Capt.; Curt Janssen, Security Supervisor, Capt.; Capt. Gempeler, Security Supervisor; Bruce Siedschlag, HSC Manager; Officer Bauer, Lieutenant; Amy Reid, Library Director Steven Wierenga, Lieutenant; Belinda Schrubbe, HSU Manager; James Muenchow, ICE; Gary Ankarlo, Ph.D., PSUS; Linda O'Donovan, Ice; Sgt. Preist; Sgt. Meyer; Sgt. Gutjahr; Sgt. Tony; Sgt. Hilbert;Officer II Gunratt; Officer II Rolins; Officer Kmiecik; Officer Nickel; Officer Kahl, Mailroom Clerk; Ralph Floelich, Psychiatrist; Capt. Muraski, Security Supervisor; Officer II Yunto; Property Officer; Kim Bauer, Oosa; Nevin Webster<SMALL><SUP>1</SUP></SMALL> and Does 1-10, 1 all in their individual and official capacities, Respondents. |
| Court | U.S. District Court — Western District of Wisconsin |
Corey F. Finkelmeyer, Assistant Attorney General, Madison, WI, for Respondents.
This is a proposed civil action for declaratory, injunctive and monetary relief brought pursuant to 42 U.S.C. § 1983. Petitioner Luis Vasquez, a prisoner, seeks leave to proceed under the in forma pauperis statute, 28 U.S.C. § 1915. In an order dated January 24, 2007, the court concluded that petitioner was unable to pay the full filing fee and directed him to make an initial partial payment of $4.60, which the court has received. Because petitioner is a prisoner, the 1996 Prison Litigation Reform Act requires the court to deny leave to proceed if petitioner's complaint 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.
Petitioner filed an amended complaint before the court had an opportunity to screen his original complaint. Because petitioner did not need leave of court to amend his complaint before it was served on respondents, I have disregarded the first complaint and will screen the amended complaint only.
Petitioner's claims and my conclusions regarding these claims are set forth below:
(1) Respondents Casperson, Kingston, Raemisch, Westfield, Thurmer, Clements, Schueler, Janssen, Siedschlag, Hilbert, "John Doe the Reporting Officer" and "Does 1-100 in HSC" are alleged to have been involved in a use of excessive force against petitioner on August 17, 2005. Petitioner will be allowed to proceed on his claim against respondent Hilbert as well as respondent Kingston, for the purpose of discovering the identities of the unnamed officers who were involved. The claims against the remaining respondents will be dismissed because petitioner's allegations show that those respondents were not personally involved in the alleged violation.
(2) Respondents Casperson, Kingston, Raemisch, Westfield, Thurmer, Strahota, Schueler, Siedschlag, Janssen, Gutjahr, Tony, Nickel, Kmiecik, "Does 1-100" and Muraski are alleged to have been involved in an unconstitutional manual body cavity search of petitioner on August 21, 2006. Petitioner will be allowed to proceed against Nickel and Kmiecik, who allegedly conducted the search, and respondents Janssen, Tony and Gutjahr, who allegedly failed to intervene to stop the search. The claims against the remaining respondents will be dismissed because those respondents are not alleged to have been personally involved in the alleged violation.
(3) Respondents Raemisch, Casperson, Kingston, Westfield, Thurmer, Strahota, Gempeler, Lieutenant Bauer, Gunratt, Meyer, Rolins and Siedschlag are alleged to have been involved in an unconstitutional body cavity search and use of force on November 3, 2006. I will allow petitioner to proceed against respondents Gunratt, Bauer, Rolins, Gempeler and Meyer, who allegedly either directly participated in the search and use of force or failed to intervene to stop their co-respondents' acts. The claims against the remaining respondents will be dismissed because petitioner's allegations show that they were not personally involved in the alleged violation.
(4) Respondents Hilbert and Schueler and various unnamed officers allegedly denied petitioner medical care after the August 17 use of force. A decision on this claim will be stayed until March 27, 2007, to allow petitioner to Me an addendum to his complaint (a) explaining why he believes respondents knew he needed immediate medical treatment and (b) describing the unnamed officers with more specificity to allow them to be more easily identified.
(5) Respondent Ankarlo allegedly refused to provide petitioner with mental health treatment after the incidents on August 21 and November 3. A decision on this claim will be stayed until March 27, 2007, to allow petitioner to file an addendum to his complaint explaining what he told Ankarlo and how Ankarlo responded.
(6) Respondents Floelich, Schrubbe, Muenchow, Casperson and Kingston are alleged to have been deliberately indifferent to petitioner's health by denying him psychotropic medication for approximately one week in June 2006. Petitioner will be allowed to proceed on this claim against respondent Schrubbe for the purpose of discovering the party or parties that may have intentionally disregarded respondent Floelich's instructions to maintain petitioner's medication until he received a new prescription. Petitioner may not proceed on this claim against the remaining respondents either because there is no set of facts consistent with petitioner's allegations that would allow petitioner to prevail or because petitioner has not given the respondents notice of his claim against them.
(7) Respondents Schrubbe and Siedschlag were allegedly deliberately indifferent to petitioner's health when they allowed him to go without lithium for approximately one week in the fall of 2006. Petitioner will be allowed to proceed against both respondents for the purpose of discovering the party or parties who may have been aware that petitioner was going without needed medication.
(8) Respondents Wierenga, Kahl, Clements, Casperson, Kingston, Westfield, O'Donovan, Raemisch. Thurmer, Siedschlag, Preist, Strahota, Muenchow, Yunto and "Sgt. John Doe" allegedly opened petitioner's legal mail on four different occasions outside his presence. Petitioner will be denied leave to proceed on this claim with respect to all of these respondents because petitioner has failed to state a claim upon which relief may be granted.
(9) Respondents Casperson, Kingston, Westfield, Clements, Strahota, Schueler, Siedschlag, Reid, Webster, Wierenga, O'Donovan, Kahl and "Sgt. John Doe" allegedly denied petitioner access to the courts when they: (a) failed to fix computers petitioner wanted to use for legal research while preparing an appeal; (b) did not give him sufficient law library time while he was preparing the complaint in this case; and (c) confiscated his legal manual. Petitioner will be denied leave to proceed on this claim with respect to all respondents because he has failed to state a claim upon which relief may be granted.
Although petitioner includes Kim Bauer in the caption of his complaint, he does not allege any facts relating to her in the body of his complaint. Accordingly, respondent Kim Bauer (not to be confused with Lieutenant Bauer) will be dismissed from the case.
Petitioner filed a motion for appointment of counsel with his original complaint. This motion will be denied because petitioner has not made any efforts to obtain counsel on his own and it is too early in the lawsuit to determine whether petitioner is unable to represent himself or whether appointing counsel would make a difference in the outcome.
In addressing any pro se litigant's complaint, the court must read the allegations of the complaint generously. Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). In his amended complaint, petitioner alleges the following facts.
On August 17, 2005, officer Spurgeon (who is not a respondent) and another correctional officer ordered petitioner to stand against the wall after they found him fighting with another prisoner. The officers placed handcuffs and a waste belt restraint on petitioner. He became calm and did not resist when the officers held him against the wall.
Another officer, respondent Sgt. Hilbert, arrived. Although petitioner was not resisting, Hilbert directed Spurgeon and the other officer to "take [petitioner] down." While Spurgeon and the other officer hesitated, numerous other officers arrived on the scene. The officers tackled petitioner and held him to the floor. Petitioner yelled that the officers were twisting his hands and were going to break his wrists. The officers did not relent but "brutally" gripped his arms, legs and head against the floor. Hilbert directed the officers to place leg irons on petitioner.
Petitioner was taken to a "strip cell" and directed to remove his clothes. Petitioner complied, showing Spurgeon and respondents Hilbert and Steven Schueler (a security supervisor), the cuts on his wrists and bruises on his arms and legs. Spurgeon gave petitioner a tissue to help stop the bleeding, but he did not offer petitioner any medical treatment.
Petitioner was placed in isolated confinement. Later, petitioner started to feel "major pain" in his wrists, which were still bleeding and turning black and blue. Petitioner asked "several officers" to see a nurse, but each of them "just nodded and departed." When petit...
To continue reading
Request your trial
-
Walker v. Groot
...speech protected by the First Amendment or what cognizable and non-speculative harm he might have suffered, cf. Vasquez v. Raemisch, 480 F.Supp.2d 1120, 1138 (W.D. Wis. 2007) (observing that although "prisoners have a First Amendment right to send and receive mail," the right is limited), c......
-
Chambers v. Badsky
...mail is not, in other words, entitled to independent First Amendment protection.Id. (footnotes omitted); see also Vasquez v. Raemisch, 480 F.Supp.2d 1120, 1140 (W.D.Wis. 2007). 10. Moreover, plaintiff's allegation that defendant Badsky read his legal mail is based upon his hearsay statement......
-
Sharp v. Numsen
...to converge on whether the unjustified opening of [legal] mail is a violation” or merely “a potential violation”); Vasquez v. Raemisch, 480 F.Supp.2d 1120, 1138-41 (W.D. Wis. 2007) (prisoners do not have a freestanding right to be present when prison officials open mail, legal or otherwise)......
-
Voss v. Carr
...time to conduct legal research even if they believe this would improve the quality of their submissions." Vasquez v. Raemisch, 480 F. Supp. 2d 1120, 1142 (W.D. Wis. 2007). It was Voss's choice to litigate so many cases simultaneously. That choice doesn't trigger a corresponding duty on DOC ......