Koellen v. Greenwood et al

Filing 10

ORDER signed by Judge J P Stadtmueller on 6/12/09 as follows: denying without prejudice 7 plaintiff's motion to appoint counsel; denying 9 plaintiff's motion for summary judgment; dismissing defendants Rick Raemisch and Wisconsin Depart ment of Corrections as parties to this action; plaintiff to serve defendants with the Amended Complaint, waiver of service form, and/or summons, and copy of this order; defendants shall file a responsive pleading to the Amended Complaint. See Order. (cc: plaintiff, Warden of Green Bay Correctional Institution, AAG Corey F. Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
T H O M A S KOELLEN, P l a i n t if f, v. G R E E N BAY CORRECTIONAL INSTITUTION (GBCI), GBCI W A R D E N W IL L IA M POLLARD, JEANANNE GREENW O O D , Health Service Manager, RICHARD HEIDORN, MD, RICK RAEMISCH, Secretary of W is c o n s in Department of Corrections (DOC), J A M E S GREER, DOC Health Service Director, JOHN and JANE DOES, DOC Employees, D e fe n d a n ts . C a s e No. 08-C-1038

DECISION AND ORDER
T h e plaintiff, who is incarcerated at Green Bay Correctional Institution (GBCI), lo d g e d a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that his civil rig h ts were violated. The plaintiff has paid the full filing fee for this action. In a d e c isio n and order dated January 9, 2009, the court gave the plaintiff an opportunity to file an amended pleading setting forth the defendants' personal involvement with re s p e c t to the plaintiff's claims. The plaintiff has filed an amended complaint, a m o tio n for appointment of counsel, and a motion for summary judgment, all of which a re now before the court. T h e court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 b e c a u s e the matter arises under federal statutes. Venue is proper under 28 U.S.C.

§ 1391. The case was assigned according to the random assignment of civil cases p u rs u a n t to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D. Wis.). Complaints brought by prisoners seeking relief against a governmental entity o r officer or employee of a governmental entity must be screened. 28 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner h a s raised claims that are legally "frivolous or malicious," that fail to state a claim u p o n 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 fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o avoid dismissal for failure to state a claim, the complaint must contain a "s h o rt and plain statement of the claim showing that the pleader is entitled to relief." F e d . R. Civ. P. 8(a). It is not necessary for the plaintiff to plead specific facts; his s ta te m e n t need only "give the defendant fair notice of what the . . . claim is and the g ro u n d s upon which it rests." Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197,

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2 2 0 0 (2007) (citations omitted). In deciding whether the complaint states a claim, th e court must accept as true all of the factual allegations contained in the complaint. B e ll Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). There is no heightened pleading requirement for pro se prisoner civil rights complaints. T h o m s o n v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004). Of course, if a c o m p la in t pleads facts that show that a plaintiff does not have a claim, the complaint s h o u ld be dismissed "without further ado." Id. at 970. T o state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege: (1) th a t he or she was deprived of a right secured by the Constitution or laws of the U n ite d States; and (2) that the deprivation was visited upon the plaintiff by a person a c tin g under color of state law. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The c o u rt is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal construction. See Erickson, 127 S. Ct. at 2200 (quoting Estelle v. Gamble, 4 2 9 U.S. 97, 106 (1976)). A c c o rd in g to the plaintiff's amended complaint, he was first seen by the GBCI H e a lth Services Unit (HSU) on March 7, 2006, for an "ulcerated and infected foot." (A m e n d e d Complaint at 2). After thirteen days of observation and treatment, he was re tu rn e d to his dorm unit, even though his foot was "still swollen and quite tender." Id . The plaintiff had a follow up appointment scheduled for April 6, 2006, but the H S U (the nurses and health care supervisor) canceled the appointment, thereby "le a vin g Koellen to suffer and endure the pain and misery." Id.

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T h e plaintiff states that on April 7, 2006, the plaintiff's foot was so swollen that h e could not put his shoe on and he was also in a great deal of pain. Sergeant A n n ib a le was informed of this "urgent" situation and called the HSU to advise that th e plaintiff needed to be seen right away. Id. An unknown nurse informed the o ffic e r that HSU was too busy, that the doctor was not available, and that the plaintiff w o u ld have to wait to be seen at an appointment on April 10, 2006. "Over the next d a y s , Koellen took Ibuprofen to try and numb his pain, but the level of pain was so s e ve re , that nothing seemed to help, and his foot continued to swell and become w o rse ." Id. On April 10, 2006, there was no pass for the plaintiff to be seen. However, S e r g e a n t Apiza was informed of the situation and could see how swollen the p la in tiff's foot was and "that redness was traveling up his leg." Id. The sergeant c a lle d the nurses at the HSU, advised them of the "worsened and more serious s itu a tio n " and requested that they see the plaintiff at once. (Amended Complaint at 3 ). According to the plaintiff's complaint, an unknown nurse advised the sergeant th a t the HSU was short of staff and was too busy to see the plaintiff at that time. The plaintiff states that later that day, the sergeant called the HSU after seeing th e plaintiff limping and the expression of pain on his face. The sergeant indicated th a t this was "a very serious situation" and advised the HSU that she was having the p la in tiff brought over in a wheel chair. Id. W h e n he arrived at the HSU, the plaintiff w a s placed in a bed where he stayed for observation and treatment. The plaintiff

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e m p h a s ize s that "this would have not occurred absent the overriding decision of a c a rin g sergeant, who forced health care to see Koellen immediately." Id. O n April 12, 2006, the plaintiff was transferred to St. Vincent Hospital in Green B a y , W is c o n s in . At the hospital, the plaintiff was admitted and diagnosed with a "s e ve re cellulitis infection," and he received an IV and other drugs, including pain m e d ica tio n s . Id. The plaintiff was hospitalized until April 18, 2006, and he remained u n d e r observation and treatment at the HSU until April 25, 2006. F o llo w in g his return to his dorm unit on April 29, 2006, the plaintiff requested a n tib io tic s on two occasions because his foot "was swelling up again and feeling m o re painful than it had." Id. After the second request for antibiotics, the plaintiff re c e ive d a response that he would be seen in the near future. The plaintiff asserts th a t the decision to do nothing further was made by the nurses and their supervisor w h o reviewed all health service requests. T h e plaintiff was finally seen by the HSU on June 10, 2006. He was told that h is foot appeared to be improving and no treatment was needed, even though he in s is te d that his foot was "constantly paining him" and "still swelled up a lot of the tim e ." (Amended Complaint at 3-4). The plaintiff further states that he continued to complain to HSU personnel that h is foot "still bothered him a great deal, swelled and pained him a lot." (Amended C o m p la in t at 4). On February 17, 2008, the plaintiff was advised that he was s c h e d u le d to be seen by HSU personnel. W h e n he was finally seen, the plaintiff was

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g ive n medication to use in soaking his foot, but his foot continued to bother him. A c c o rd in g to the plaintiff, he made other health service requests and even suggested th a t his problem might be gout. On April 1, 2008, May 18, 2008, and May 28, 2008, th e plaintiff was informed that he was scheduled to be seen again. It is unclear w h e th e r the plaintiff was seen in between these requests or whether they promised a n appointment in the future. O n June 15, 2008, the plaintiff sent a request for more bandages to hold the a n tib io tic ointment on his toe and foot, but this request was denied because the o rd e r had expired and he would have to be seen to determine if this was necessary. In June 2008, the plaintiff was seen and the medical records indicated that his big to e was not improving. On July 17, 2008, Dr. Heidorn saw the plaintiff at the HSU a n d told him that he was "suspicious of gout" based on the plaintiff's blood tests. (A m e n d e d Complaint at 5). In August 2008, the plaintiff was diagnosed with gout, and specific treatment fo r gout commenced. "Once this treatment started, Koellen's toe and foot started to h e a l and the swelling diminished as well as the degree of pain he had been e xp e rie n c in g for such a lengthy period of time." (Amended Complaint at 6). The plaintiff states that, as of January 2009, his foot remains sensitive, and h e is unable to wear the state-issued shoes without discomfort. He states that he o fte n has "tingling in his foot," and that there is "a permanent loss of feeling." Id.

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T h e plaintiff maintains that the problem could have been prevented if the n u rs e s had arranged to see the plaintiff when they were initially notified by the s e r g e a n ts "of the serious and urgent need for medical attention." C o m p la in t at 7). (Amended

The plaintiff also contends that if "vigorous tests" had been

c o n d u c t e d earlier, "the proper diagnosis of gout would have been made, and that p r o p e r treatment for gout would have commenced long ago, rather than to allow K o e lle n to suffer as the case was for nearly 2 years while this went undiagnosed and im p ro p e rly treated." Id. According to the plaintiff, he now lives with a constant fear th a t he may stumble or fall due to the loss of feeling in his foot. The plaintiff's amended complaint does not contain a specific request for relief, b u t his original complaint contained a request for punitive and compensatory d a m a g e s , as well as a request for a permanent injunction forbidding the defendants fro m retaliating against the plaintiff due to this action brought against them. Although a n amended complaint supersedes an original complaint, the court will consider the p la in tiff's original request for relief to be part of his amended complaint. See Duda v . Board of Ed. of Franklin Park Public School District No. 84, 133 F.3d 1054, 1056 (7 th Cir. 1998). The plaintiff names the following defendants: 1) GBCI Warden William Pollard; 2 ) Jeananne Greenwood, the GBCI HSU supervisor; 3) Department of Corrections; 4 ) Dr. Richard Heidorn; 5) James Greer, Health Service Director for DOC; 6) DOC S e c re ta ry Rick Raemisch; and 7) Jane and John Does - prison employees.

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F irs t, the plaintiff alleges that defendants Greenwood, Dr. Heidorn, and the u n n a m e d nurses personally participated in the denial of medical care for him that re s u lte d in a delay in his treatment for gout and permanent nerve damage. He s u b m its that this constitutes a violation of his right to medical care under the Eighth A m e n d m e n t. T o establish liability under the Eighth Amendment, a prisoner must show: 1) th a t his medical need was objectively serious; and 2) that the official acted with d e lib e ra te indifference to the prisoner's health or safety. Farmer v. Brennan, 511 U .S . 825, 834 (1994); Chapman v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001); see a ls o Estelle v. Gamble, 429 U.S. 97, 104-05 (1996); Zentmyer v. Kendall County, Illin o is , 220 F.3d 805, 810 (7th Cir. 2000). A serious medical need is "one that has b e e n diagnosed by a physician as mandating treatment or one that is so obvious th a t even a lay person would easily recognize the necessity for a doctor's attention." W y n n v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v. Peters, 1 1 1 F.3d 1364, 1373 (7th Cir. 1997)). A prison official acts with deliberate indifference when "the official knows of a n d disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 8 3 7 . Prison officials act with deliberate indifference when they act "intentionally or in a criminally reckless manner." Tesch v. County of Green Lake, 157 F.3d 465, 474 (7 th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis fo r liability. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7th Cir. 1991). A

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fin d in g of deliberate indifference requires evidence "that the official was aware of the ris k and consciously disregarded it nonetheless." Chapman v. Keltner, 241 F.3d 8 4 2 , 845 (7th Cir. 2001) (citing Farmer, 511 U.S. at 840-42). H e re , the plaintiff asserts that he was suffering from a serious medical c o n d itio n , namely foot pain that was ultimately diagnosed as gout. He also asserts th a t defendants Greenwood, Dr. Heidorn, and several unnamed nurses acted with d e lib e ra te indifference to his serious medical condition.1 At this juncture, the court fin d s that the plaintiff may proceed on an Eighth Amendment claim for the delay in d ia g n o s in g and treating his gout against defendants Greenwood, Dr. Heidorn, and th e unnamed nurses. Second, the plaintiff makes a claim against W a rd e n W illia m Pollard and DOC H e a lth Service Director James Greer for failure to maintain adequate staffing in the H S U at GBCI. The plaintiff asserts that defendant Pollard was "liable to see that s h o rta g e s of staff within the Health care unit were filled, so as not to delay or deny in m a te s . . . timely and adequate medical attention." (Amended Complaint at 8). He a lle g e s that defendant Pollard could have ordered overtime hours, hired additional s ta ff or mandated nurses to work to cover for the absence of others. Similarly, the p la in tiff alleges that it is defendant Greer's responsibility "to assure that adequate s taffin g is maintained at institutions and he failed to do so." Id. At this juncture, the

The plaintiff has nam e d John Doe and Jane Doe nurses and described their involvem e n t in the facts u n d e rlyin g his Eighth Am e n d m e n t m e d ic a l care claim . W h ile he m u s t eventually discover the nam e s of the d e f e n d a n ts , at the in forma pauperis stage of the proceedings a com p la in t is not subject to dism is s a l for failure t o identify som e of the defendants by nam e . Billman v. Ind. Dep't of Corrs., 56 F.3d 785, 789 (7th Cir.1995).

1

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p la in tiff will also be allowed to proceed on an Eighth Amendment claim against d e fe n d a n ts Pollard and Greer that their failure to maintain adequate staffing levels in the GBCI HSU constituted deliberate indifference to his serious medical need. T h ird , the plaintiff asserts claims against the W is c o n s in Department of C o rre c tio n s (DOC) and DOC Secretary Rick Raemisch. The W is c o n s in Department o f Corrections is not a proper defendant because it is not a "person" for purposes of § 1983. See Lapides v. University of Georgia, 535 U.S. 613, 617-18 (2002); Will v. M ic h ig a n Department of State Police, 491 U.S. 58 (1989). It will be dismissed as a p a rty to this action. Regarding defendant Raemisch, the plaintiff states that he is "th e general supervisor or head above all, as he is secretary of the DOC. He is to o ve rs e e that every department and facility under him operates smoothly and so as n o t to cause a constitutional violation . . .." (Amended Complaint at 8). The

p la in tiff's claim against defendant Raemisch is rooted solely in the doctrine of re s p o n d e a t superior, which is not actionable under § 1983. Burks v. Raemisch, 555 F .3 d 592, 593 (7th Cir. 2009). The court will dismiss defendant Raemisch as a party in this action. In summary, the plaintiff may proceed on an Eighth Amendment medical care c la im against defendants Jeananne Greenwood, Dr. Richard Heidorn, and unnamed n u rs e s identified as Jane Does and John Does. He will also be able to proceed a g a in s t defendants W illia m Pollard and James Greer for their alleged failure to m a in ta in adequate staffing in the HSU at GBCI.

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M O T IO N FOR APPOINTMENT OF COUNSEL T h e plaintiff has also filed a motion for appointment of counsel. He argues th a t he requires assistance in the preparation of legal correspondence and pleadings b e c a u s e he does not have a high school diploma and tests at a fourth grade level. T h e plaintiff also argues that he has no professional legal training and, therefore, n e e d s the assistance of a legal professional to comply with the court's rules and p ro c e d u re s and to assure that his rights are protected. In d ig e n t civil litigants have no constitutional or statutory right to be represented b y counsel in federal court. Jackson v. County of McLean, 953 F.2d 1070, 1071 (7th C ir . 1992). The court can request, but cannot compel, attorneys to represent

in d ig e n ts in appropriate cases pursuant to 28 U.S.C. § 1915(e)(1). Pruitt v. Mote, 5 0 3 F.3d 647, 653 (7th Cir.2007); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir.1997) (c itin g Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.1995)). However, this court has n o access to funds to compensate attorneys for such representation. As a threshold matter, litigants must make a reasonable attempt to secure p riva te counsel on their own. Pruitt, 503 F.3d at 654; Zarnes, 64 F.3d at 288. Once th is threshold burden has been met, the court must address the following question: g ive n the difficulty of the case, does this plaintiff appear competent to try the case h im s e lf and, if not, would the presence of counsel likely make a difference in the o u tc o m e of the case. Pruitt, 503 F.3d at 654-655 (citing Farmer v. Haas, 990 F.2d 3 1 9 , 322 (7th Cir.1993)).

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In this case, although the plaintiff has not provided any indication that he has u n s u c c e s s fu lly attempted to obtain legal counsel on his own, it appears that the p la in tiff is competent to try the case himself. The plaintiff has provided detailed c o m p la in ts setting forth his claims. The issues in this case appear at this stage to b e straightforward and uncomplicated. Therefore, at this stage of the proceedings, g ive n the nature of the case, the court concludes that the plaintiff is competent to litig a te this case himself. Accordingly, the plaintiff's motion for appointment of c o u n s e l will be denied. M O T IO N FOR SUMMARY JUDGMENT T h e plaintiff has also filed a motion for summary judgment. The defendants in this case have not yet been served, nor have they had an opportunity to respond to the plaintiff's amended complaint. As such, the plaintiff is not entitled to summary ju d g m e n t. His motion for summary judgment will be denied. ORDER N O W , THEREFORE, IT IS ORDERED that the plaintiff's motion to appoint c o u n s e l be and hereby is DENIED without prejudice (Docket #7). IT IS FURTHER ORDERED that the plaintiff's motion for summary judgment b e and hereby is DENIED (Docket #9). IT IS FURTHER ORDERED that defendants Rick Raemisch and the W is c o n s in Department of Corrections will be DISMISSED as parties to this action.

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IT IS FURTHER ORDERED that the plaintiff serve a copy of the Amended C o m p la in t, a waiver of service form, and/or summons, and a copy of this order, on th e following defendants: Jeananne Greenwood, Dr. Richard Heidorn, W a rd e n W illia m Pollard, James Greer, and Jane Does and John Does, nurses at the GBCI HSU. IT IS ALSO ORDERED that the defendants shall file a responsive pleading to the Amended Complaint. IT IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857. T h e plaintiff is hereby notified that he is required to send a copy of every paper o r document filed with the court to the opposing parties or their attorney(s). Fed. R. C iv. P. 5(a). The plaintiff should also retain a personal copy of each document. If th e plaintiff does not have access to a photocopy machine, he may send out id e n tic a l handwritten or typed copies of any documents. The court may disregard a n y papers or documents which do not indicate that a copy has been sent to each d e fen d a n t or to their attorney(s). T h e plaintiff is further advised that failure to make a timely submission may re s u lt 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 a d d re s s . Failure to do so could result in orders or other information not being timely d e live r e d , thus affecting the legal rights of the parties. D a te d at Milwaukee, W is c o n s in , this 12th day of June, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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