Lamb v. Schmalling et al

Filing 31

AMENDED SCREENING ORDER signed by Chief Judge William C Griesbach on 6/30/2017. Defendants Racine County Jail and Christopher Schmalling are DISMISSED. 24 MOTION to Appoint Counsel filed by Casey Lamb is DENIED without prejudice. (cc: all counsel and via US Mail to Plaintiff, Warden)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CASEY LAMB,
Plaintiff,
v.

Case No. 17-C-383

ADVANCED CORRECTIONAL
HEALTHCARE INC, et al.,
Defendants.

ORDER

Plaintiff Casey Lamb filed a pro se civil rights complaint on March 15, 2017, alleging
constitutional violations under 42 U.S.C. § 1983 that occurred while he was housed at the Racine
County Jail. In a screening order dated April 3, 2017, I allowed Lamb to proceed on a Fourteenth
Amendment deliberate indifference claim against defendants Latisha R., Jane Doe Nurse 1, and Jane
Doe Nurse 2, a Monell claim against defendant Advanced Correctional Healthcare, and dismissed
defendant Christopher Schmaling. I also gave Lamb leave to file an amended complaint to
specifically name the medical contractors once he learned their identities. Before me now for
screening is Lamb’s amended complaint in which he names the medical contractors and seeks to add
new defendants.
The court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
court must dismiss a complaint or portion thereof if the prisoner has raised 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). A claim
is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504
U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v.
Spink, 126 F.3d 895, 900 (7th Cir. 1997).
To state a cognizable claim under the federal notice pleading system, the plaintiff is required
to provide a “short and plain statement of the claim showing that [he] is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). The court accepts the factual allegations as true and liberally construes them in the plaintiff’s
favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint’s
allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
Lamb’s amended complaint appears to address in more detail the allegations he raised in his
original complaint. He was transferred to the Racine County Jail as a pretrial detainee on February
17, 2017. He claims to have been experiencing extreme pain as the result of two cracked teeth with
exposed nerves, a third painful tooth, and a “severe” infection. Lamb alleges that he alerted the Jail’s
medical director, Latisha Ramus, of his immediate need to be seen by a dentist but that Ramus, Dr.
Heckman, Nurse Julie Sieczkowski, and Nurse Sarah Hoffman all told him that he would need to
deal with the pain because the Jail’s and Advanced Correctional Healthcare’s policy is to not have
a dentist on site. He also claims he was told that he “might see a dentist by April or May.” He
further asserts that Rasmus, Heckman, Sieczkowski, and Hoffman all failed to properly diagnosis
and treat his serious medical and dental needs. Lamb alleges that when he was finally seen by a
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dentist in May, his damaged teeth were removed, not repaired, because the Jail’s and Advanced
Correctional’s policy is to “pull only.” He claims that he has suffered two more serious mouth/gum
infections due to the extractions. Lamb concludes that his rights were violated from “a combination
of the defendants’ failure to provide and/or inadequate medical/dental intake screening proceedures
[sic], and lack of on-site professional dental services.”
It is well-established that deliberate indifference to the serious medical needs of a person held
in custody violates his or her constitutional rights. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To
establish liability, a prisoner must show (1) that his medical need was objectively serious; and (2) that
the official acted with deliberate indifference to the prisoner’s health or safety. Farmer v. Brennan,
511 U.S. 825, 834 (1994). A serious medical need is “one that has been diagnosed by a physician
as mandating treatment or one that is so obvious that even a lay person would recognize the
necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001).
Deliberate indifference requires more than negligence; it requires that the official know of, yet
disregard, an excessive risk to the inmate's health or safety. Farmer, 511 U.S. at 835, 837.
Subjective knowledge of the risk is required: "[A]n official’s failure to alleviate a significant risk that
he should have perceived but did not, while no cause for commendation, cannot under our cases be
condemned as the infliction of punishment." Id. at 838. Although the standards are the same, a
pretrial detainee’s claim for deliberate indifference arises under the Fourteenth Amendment rather
than the Eight Amendment. Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984, 989 (7th Cir.
2012).
Lamb’s amended complaint states the basics of a Fourteenth Amendment deliberate
indifference claim against defendants Ramus, Heckman, Sieczkowski, and Hoffman. Based on the
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facts stated above, this court cannot say that Lamb’s medical conditions do not constitute a serious
medical need or that jail officials did not demonstrate deliberate indifference to his conditions. Lamb
may also proceed against Advanced Correctional Healthcare and Racine County on a Monell claim
based upon his allegations that inadequate screening procedures, the lack of available dental services,
and the “pull only” policy resulted in his claimed deprivations. However, Lamb may not proceed
against the Racine County Jail or Sheriff Schmaling in his official capacity. The Racine County Jail
is not a legal entity separable from the county of which it is a part. Claims against a county sheriff
in his official capacity are treated as claims against the county itself. Grieveson v. Anderson, 538
F.3d 763, 771 (7th Cir. 2008). Accordingly, there is no need to proceed against all three defendants.
Lamb has also filed a third motion for the appointment of counsel. The motion will be
denied. The court previously determined that Lamb is competent to litigate this matter. See Pruitt
v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc). Indeed, he served interrogatories on the
defendants and was able to learn the full names of previously unnamed defendants. As the court
previously noted, there is nothing in the record to suggest that Lamb does not have the same
competence to represent himself as the vast number of other pro se litigants who cannot afford to
hire an attorney and are unable to convince one to take his case on a contingent fee basis. The fact
that the defendants are represented by attorneys is not a sufficient reason to appoint counsel in this
case. Lamb’s motion is denied without prejudice and the court will reconsider his request as the case
proceeds.
THEREFORE, IT IS ORDERED that plaintiff may proceed against Advanced Correctional
Healthcare, Inc., Latisha Ramus, Dr. Dan Heckman, Julie, Sieczkowski, Sarah Hoffman, and Racine
County.
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IT IS FURTHER ORDERED that defendants Racine County Jail and Christopher
Schmaling are dismissed
IT IS FURTHER ORDERED that plaintiff’s third motion for the appointment of counsel
(ECF No. 24) will be DENIED without prejudice.
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the
complaint and this order upon the defendant pursuant to Federal Rule of Civil Procedure 4. The
plaintiff is advised that Congress requires the U.S. Marshals Service to charge for making or
attempting such service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages is
$8.00 per item mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
Although Congress requires the court to order service by the U.S. Marshals Service precisely
because in forma pauperis plaintiffs are indigent, it has not made any provision for these fees to be
waived either by the court or by the U.S. Marshals Service.
IT IS ALSO ORDERED that the defendants shall file a responsive pleading to the
complaint.
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the remaining balance of the filing fee by collecting monthly
payments from the plaintiff’s prison trust account in an amount equal to 20% of the preceding
month’s income credited to the prisoner’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 action. If the
plaintiff is transferred to another institution, the transferring institution shall forward a copy of this
Order along with plaintiff’s remaining balance to the receiving institution.
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IT IS ALSO ORDERED that copies of this order be sent to the warden of the institution
where the inmate is confined.
IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal
material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
125 S. Jefferson St., Rm. 102
Green Bay, WI 54301

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter. As each filing will be electronically scanned and entered on
the docket upon receipt by the clerk, the plaintiff need not mail copies to the defendants. All
defendants will be served electronically through the court’s electronic case filing system. The
plaintiff should also retain a personal copy of each document filed with the court.
The plaintiff is further advised that failure to make a timely submission 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. Failure to
do so could result in orders or other information not being timely delivered, thus affecting the legal
rights of the parties.
Dated this 30th

day of June, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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