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Michael Wisner v. Forrest Ashby

July 13, 2012


The opinion of the court was delivered by: Sue E. Myerscough United States District Judge


3:12-cv-03142-SEM-BGC # 6 Page 1 of 13 Friday, 13 July, 2012 03:54:57 PM Clerk, U.S. District Court, ILCD


Plaintiff, proceeding pro se and currently detained in the Rushville Treatment and Detention Center, seeks leave to proceed in forma pauperis.

The "privilege to proceed without posting security for costs and fees is reserved to the many truly impoverished litigants who, within the District Court's sound discretion, would remain without legal remedy if such privilege were not afforded to them." Brewster v. North Am. Van Lines, Inc., 461 F.2d 649, 651 (7th Cir. 1972). Additionally, a court must dismiss cases proceeding in forma pauperis "at any time" if the action is frivolous, malicious, or fails to state a claim, even if part of the filing fee has been paid. 28 U.S.C. § 1915(d)(2). Accordingly, this Court grants leave to proceed in forma pauperis only if the complaint states a federal claim. A hearing was scheduled to assist in this review, but the hearing will be cancelled as unnecessary.


To state a claim, the allegations must set forth a "short and plain statement of the claim showing that the pleader is entitled to relief ." Fed. R. Civ. P. 8(a)(2). Factual allegations must give enough detail to give "'fair notice of what the . . . claim is and the grounds upon which it rests.'" EEOC v. Concentra Health Serv., Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007))(add'l citation omitted). The factual "allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level.'" Id. (quoting Bell Atlantic, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged . . . . Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic, 550 U.S. at 555-56). However, pro se pleadings are liberally construed when applying this standard. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009).


Plaintiff is detained in the Rushville Treatment and Detention Center pursuant to the Illinois Sexually Violent Persons Act. He suffers from bipolar disorder, which makes him prone to mood swings and "uncontrolled verbal reactions" when provoked or threatened.

Plaintiff is five foot, three inches tall, 125 pounds, with red hair and freckles. He alleges, "I appear much younger than I am and this in and of itself creates an environment both in the TDF and the Prison System wherein I am seen as an individual that is easily victimized or taken advantage of." (Complaint, ¶ 7). Various Defendants have allegedly exacerbated the situation by openly degrading Plaintiff, calling him "punk," "jail bait," "prison bitch," "baby," "hooker," and "suggest[ing] [Plaintiff] would enjoy a good rape every now and then." (Complaint, ¶¶ 8, 10, 12, 44). Plaintiff contends that this taunting puts him in a dangerous situation by broadcasting his vulnerability and making him a target for sexual predators. He further alleges that he is frequently or continually placed with roommates who are sexual predators or who exacerbate his bipolar disorder. Additionally, Defendant Williams allegedly introduced Plaintiff to another resident (Richard Webb) on the pretext that Webb, who allegedly has legal training, could help Plaintiff with his legal problems. However, Webb is allegedly known throughout the facility as a sexual predator. Webb allegedly told Plaintiff that Webb was "cuffing" Plaintiff because Williams had "given" Plaintiff to Webb. (Complaint, p. 18).

On March 20, 2012, Plaintiff believed that he was confined to his room for a "cool down." Plaintiff asked over the intercom whether his cool down had ended. Defendant Sandstrom denied knowledge of a cool down. Plaintiff then asked to speak to a "white shirt." Sandstrom responded by calling Plaintiff names. Plaintiff and his roommate began talking about taking court action to end the pervasive verbal abuse by guards. Unbeknownst to Plaintiff, Defendant Sandstrom was still listening on the intercom and overheard the remarks. Eleven Defendants rushed into Plaintiff's room and "body slammed" Plaintiff into a plastic property box. Defendants Kelly and Mantzke, both heavy set men, then sat on Plaintiff until he could no longer breathe. Plaintiff was then carried off to segregation and the health care unit, where he was treated for injuries. Plaintiff asked if photos could be taken of the injuries, but Defendant Parsons responded that Plaintiff should "shut up" and that Parsons could arrange to have the staff "kick Plaintiff's ass" at any time. (Complaint, ¶ 19). Though Plaintiff allegedly was unable to walk after the incident, Defendant Williams refused to allow Plaintiff to use crutches, for purported security reasons. Additionally, Plaintiff was written a false disciplinary report after the incident, accusing him of creating a disturbance.

Plaintiff's untreated bipolar disorder may have played a role putting Plaintiff at risk of such an incident. Plaintiff had been receiving medication for his bipolar disorder, but Defendant Tinwalla discontinued the medicine and failed to otherwise treat the condition, and failed to inform staff about Plaintiff's condition. Defendants Tinwalla, Roth, Wilcynski, and Atkinson continued to refuse to treat Plaintiff's bipolar disorder after the incident, even though Plaintiff informed them that he was suffering severe mood swings, high anxiety, and irregular sleep patterns.


Plaintiff's claims are analyzed like those of a pretrial detainee, which means his claims fall under the Fourteenth Amendment's due process clause. However, much of the analysis is borrowed from the Eighth Amendment standard applicable to inmates serving their convictions. See Rosario v. Brawn, 670 ...

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