Berry v. Lutsey et al

Filing 20

ORDER granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee; finding as moot 11 Motion for Extension of Time; finding as moot 12 Motion for Extension of Time; denying 17 Motion to Appoint Counsel ; granting 19 Motion to Amend Complaint. Defendants Allen, Joseph, Haight and the Special Needs Committee are dismissed. (cc: all counsel and via US Mail to Christopher Berry and Warden) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

CHRISTOPHER BERRY,
Plaintiff,
v.

Case No. 17-C-551

JEAN LUTSEY,
MARY SUAVEY,
JOANNE LABELLE,
LISA ALLEN,
M. JOSEPH,
NURSE PRACTITIONER PETERS,
HAIGHT, and
GBCI SPECIAL NEEDS COMMITTEE,
Defendants.

SCREENING ORDER

The plaintiff, Christopher Berry, who is incarcerated at Green Bay Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. On May
18, 2017, Berry filed a motion to amend information. The court denied Berry’s motion because it
did not comply with the Federal Rules of Civil Procedure and local rule governing the amendment
of pleadings. The court advised Berry that he could file a motion for leave to amend and that he
should attach a proposed amended complaint to the motion. Berry has complied with the court’s
order and his motion to amend the complaint is granted pursuant to Federal Rule of Civil Procedure
15. This matter comes before the court for screening Berry’s amended complaint. Also pending
before the court are Berry’s motions to proceed without prepaying the full filing fee, for an extension
to pay the initial partial filing fee, and to appoint counsel.

A. Motion for Leave to Proceed Without Prepayment of the Filing Fee
Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis. Plaintiff has filed a certified copy of his prison trust account statement
for the six-month period immediately preceding the filing fee of his complaint, as required under 28
U.S.C. § 1915(a)(2), and had been assessed and paid an initial partial filing fee. Berry has also filed
two motions for an extension of time to pay the initial partial filing fee. He has since paid the initial
partial filing fee of $3.58. As such, Berry’s motion to proceed in forma pauperis will be granted and
his motions for an extension of time will be denied as moot.
B. Screening of the Complaint
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
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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).
Berry claims he suffers from a mild form of scoliosis. Because of this condition, doctors at
the Wisconsin Secure Program Facility prescribed certain medical treatment to reduce the amount
of pain he experienced, including a lower bunk restriction, a back brace, hot and cold treatments, an
extra mattress and pillow, and supportive velcro shoes. Berry alleges these restrictions have followed
him throughout his transfers to various Wisconsin Department of Corrections institutions for
approximately thirteen years. Once he was transferred to Green Bay Correctional Institution
(GBCI), however, he alleges Dr. Suavey and Jean Lutsey, the Health Services Manager,
discontinued the medical restrictions. Berry alleges he was unable to make an appointment with a
doctor who could reinstate them. He filed more than a dozen medical complaints with the Inmate
Complaint Review System, the Warden, and defendant Lutsey with requests to see a doctor
regarding the discontinuance of the restrictions. He asserts he did not see a doctor for many months
because Dr. Suavey had left GBCI, and the Health Services Unit had not found a replacement. He
alleges he endured excruciating low back pain and an ongoing numbness in his right shoulder during
this time.
HSU ultimately sent Berry to several offsite pain clinics for tests regarding his ongoing
complaints of pain. Berry alleges an EMG revealed his condition had worsened. After reviewing
the EMG, GBCI’s Physical Therapist Haight informed Berry that he had a pinched nerve in his neck
which caused his right arm to go numb. Based on these findings, Berry requested a low-tier
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restriction to accommodate his condition. However, Nurse Practitioner Peters and HSU Manager
Lutsey concluded his condition did not warrant this restriction because Peters determined Berry did
not have a pinched nerve.
Berry asserts the defendants were deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment.

The Eighth Amendment prohibits “cruel and unusual

punishments” and imposes a duty on prison officials to take reasonable measures to guarantee an
inmate’s safety and to ensure that the inmate receives adequate medical care. Farmer v. Brennan,
511 U.S. 823, 832 (1994). Prison officials violate the Constitution if they are deliberately indifferent
to a prisoner’s serious medical needs. Id. (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To
state a claim based on deficient medical care, a plaintiff must demonstrate that he had an objectively
serious medical condition and that the defendants were subjectively aware of and consciously
disregarded that condition. Id. at 837. A medical need is considered sufficiently serious if the
inmate’s condition “has been diagnosed by a physician as mandating treatment or . . . is so obvious
that even a lay person would perceive the need for a doctor’s attention.” Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011) (citations omitted).
Berry claims defendants Lutsey and LaBelle prevented GBCI’s doctors from prescribing
restrictions to reduce the pain he suffered in connection with his scoliosis and repeatedly delayed his
access to proper medical care for several months. Based on the deliberate indifference standard,
Berry has adequately plead facts to state a claim that Lutsey and LaBelle were deliberately indifferent
to his serious medical needs.
He also asserts all of the defendants were deliberately indifferent in discontinuing his medical
restrictions and refusing to reinstate them. Here, I conclude that the complaint at least minimally sets
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forth a claim of deliberate indifference against defendants Lutsey, LaBelle, Suavey, and Peters for
failing to accommodate his requests for restrictions. Indeed, the facts may lend themselves more to
a negligent claim, which is not actionable under § 1983. See id. But at this early stage in the case,
the court will allow Berry’s claim to proceed against these defendants.
However, Berry has not sufficiently alleged a deliberate indifference claim as to defendants
Allen, Joseph, Haight, and the GBCI Special Needs Committee. The complaint does not contain any
allegations that these defendants were aware of Berry’s requests for medical restrictions or any other
medical treatment. In assessing an Eighth Amendment claim, the standard is not whether the
defendants should have known that the plaintiff needed certain medical care, but rather whether they
actually knew of the plaintiff’s need and were deliberately indifferent to it. See Gayton v. McCoy,
593 F.3d 610, 620 (7th Cir. 2010) (“The official must have subjective knowledge of the risk to the
inmate’s health, and the official also must disregard that risk.”). In other words, defendants Allen,
Joseph, Haight, and the Special Needs Committee cannot be held liable for disregarding a serious
medical need or his requests for medical restrictions about which they had no knowledge. Therefore,
they must be dismissed from this action.
Finally, Berry asserts Lutsey retaliated against him by discontinuing his ice bag. To prevail
on a First Amendment retaliation claim, Berry must show that (1) he engaged in activity protected
by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment
activity in the future; and (3) the First Amendment activity was “at least a motivating factor” in
Lutsey’s decision to take the retaliatory action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009). Here, Berry does not identify what protected activity motivated Lutsey to discontinue his
ice bag. He also does not allege that denying an individual’s access to an ice bag is a form of
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deprivation that would deter protected activity in the future. In short, Berry fails to state a
retaliation claim against Lutsey. In sum, Berry may proceed on his claims of deliberate indifference
against defendants Lutsey, LaBelle, Suavey, and Peters.
C. Motion to Appoint Counsel
Berry also moves for appointment of counsel. The legal standard for deciding motions to
recruit counsel under § 1915(e)(1) in the Seventh Circuit requires the district court to consider the
difficulty of the case and the pro se plaintiff’s competence to litigate it himself. Pruitt v. Mote, 503
F.3d 647, 649 (7th Cir. 2007) (en banc). Under the Pruitt standard, Berry has failed to demonstrate
a need for court-recruited counsel. He has not alleged that he is incompetent and has provided no
specific evidence to support a finding that he lacks the competency to litigate this action himself.
Berry asserts he has limited access to the law library and no formal training in the field of law. A
lack of legal training, however, is not sufficient to justify appointment of counsel. Were this the case,
every pro se litigant would be entitled to free legal representation. Moreover, the difficulty of this
case—factually and legally—does not exceed Berry’s capacity to litigate this action. In short, there
is nothing in the record to suggest that Berry 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. Accordingly, Berry is not entitled
to court-recruited counsel at this time. This denial is without prejudice, and Berry may ask the court
again at a later stage in the litigation to consider recruiting counsel.
IT IS THEREFORE ORDERED that the plaintiff’s motion to amend his complaint (ECF
No. 19) is GRANTED. The Clerk of Court is directed to detach and e-file the amended complaint
(ECF No. 19-2) as well as the exhibits attached to it (ECF No. 19-3).
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IT IS ALSO ORDERED that the plaintiff's motion for leave to proceed in forma pauperis
(ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the plaintiff’s motions for an extension of time (ECF
Nos. 11 and 12) are DENIED as moot.
IT IS ALSO ORDERED that the plaintiff’s motion to appoint counsel (ECF No. 17) is
DENIED.
IT IS FURTHER ORDERED that defendants Allen, Joseph, Haight, and the Special Needs
Committee are DISMISSED.
IT IS ALSO ORDERED that pursuant to an informal service agreement between the
Wisconsin Department of Justice and this court, copies of plaintiff’s amended complaint and this
order are being electronically sent today to the Wisconsin Department of Justice for service on the
state defendants.
IT IS FURTHER ORDERED that, pursuant to the informal service agreement between the
Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading to the
amended complaint within sixty days of receiving electronic notice of this order.
IT IS ALSO ORDERED that the agency having custody of the prisoner shall collect from
his institution trust account the $346.42 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

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transferred to another institution, the transferring institution shall forward a copy of this Order along
with plaintiff’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
IT IS ALSO ORDERED that the parties may not begin discovery until after the court enters
a scheduling order setting deadlines for discovery and dispositive motions.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, the plaintiff
shall submit all correspondence and case filings to institution staff, who will scan and e-mail
documents to the Court. The Prisoner E-Filing Program is in effect at Columbia Correctional
Institution, Dodge Correctional Institution, Green Bay Correctional Institution, Oshkosh
Correctional Institution, Waupun Correctional Institution, and Wisconsin Secure Program Facility.
If the plaintiff is no longer incarcerated at a Prisoner E-Filing Program institution, he will be required
to submit all correspondence and legal material to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.

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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. Therefore, failure to provide your correct address could result in dismissal of
your case for failure to prosecute.
SO ORDERED this 5th day of June, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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