Wood v. Billings et al

Filing 33

ORDER signed by Judge Rudolph T. Randa on 1/28/2014. 26 MOTION to Amend/Correct Complaint GRANTED to the extent that Plaintiff may proceed on 8th Amendment claim against Defendants Billings, Neil, and Bender. All other complaints and defendants DIS MISSED; Clerk of Court to file Amended Complaint which will be operative complaint in this action. Defendants to file responsive pleading to Amended Complaint. 22 28 MOTIONS for Summary Judgment DENIED without prejudice. 32 MOTION to Stay DENIED as moot. (cc: all counsel, via US mail to Lorenzo Wood at Racine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

LORENZO WOOD, JR.,
Plaintiff,
-vs-

Case No.

13-CV-281

PATRICIA BILLINGS, SUE NEIL,
MARK BENDER, and SUE NYGREN,
Defendants.

DECISION AND ORDER

The plaintiff, who is incarcerated at Racine Correctional Institution, filed this
pro se action pursuant to 42 U.S.C. § 1983 and was granted leave to proceed in forma
pauperis on an Eighth Amendment deliberate indifference to a serious medical need claim.
The plaintiff has filed a motion to amend the complaint, which will be addressed herein.
The plaintiff seeks to amend the complaint to add several claims and four new
defendants. He asserts that a paralegal assisted him with the proposed amended complaint,
and that the pleading answers questions asked by the defendants in the papers they have filed
and clearly identifies claims not well-articulated by the jailhouse lawyer who assisted him
with the original complaint. The defendants did not file a response to the motion.
Leave to amend a pleading should be freely given “when justice so requires.”
See Fed. R. Civ. P. 15(a)(2). The decision on whether to allow the amendment is within the
discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962). Reasons for

denying a motion to amend include “undue delay, bad faith, dilatory motive on the part of
the movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, or futility of the
amendment.” Id.
The proposed amended complaint restates allegations against defendants
Billings, Neil, and Bender and sets forth how those defendants’ alleged failure to follow Dr.
Grossman’s medical instruction resulted in a severe knee infection which necessitated two
surgeries causing the plaintiff significant pain and suffering. These allegations state an Eight
Amendment deliberate indifference to a serious medical need claim. The plaintiff also seeks
to add a medical malpractice claim against defendant Billings. The Court declines to
exercise supplemental jurisdiction over this claim pursuant to 28 U.S.C. § 1367(c)(2).
The plaintiff fails to state a deliberate indifference claim against the remaining
defendants because the allegations are based on these defendants’ supervisory positions and
there is no supervisory liability under 42 U.S.C. § 1983. See T.E. v. Grindle, 599 F.3d 583,
588 (7th Cir. 2010); Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003). Section
1983 makes public employees liable “for their own misdeeds but not for anyone else’s.”
Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009); see George v. Smith, 507 F.3d 605,
609 (7th Cir. 2007).
Next, the plaintiff claims that defendants Billings, Bender, Neil, Apple,
Nygren, and Paquin conspired to hide the truth of what happened to the plaintiff in that they

2

created unreasonable delays to his receipt of medical treatment. However, as indicated, the
plaintiff does not allege that defendants Apple, Nygren, and Paquin had any personal
involvement during the relevant time period. Rather, their alleged involvement began in
April 2011, after the plaintiff had recovered sufficiently from his second surgery to
commence the administrative grievance process. Thus, the plaintiff may not proceed against
defendants Apple, Nygren, and Paquin on any delay or conspiracy claims. With respect to
defendant Billings, Bender, and Neil, the plaintiff’s allegations that they delayed his
treatment are part of his deliberate indifference claim.
Lastly, the plaintiff claims that defendants Padgett, Nygren, Burnett, Apple,
and Paquin undermined his access to the court by denying him his right to exhaust
administrative remedies. The court notes that on September 6, 2013, defendants Billings,
Neil, and Nygren filed a motion for summary judgment for failure to exhaust administrative
remedies. The plaintiff’s detailed explanation in the proposed amended complaint of how
he attempted to complete the exhaustion process may be in response to that motion. In any
event, a constitutional claim based on denial of access is premature because the plaintiff has
not alleged they prevented him from litigating a non-frivolous case. See Ortiz v. Downey,
561 F.3d 664, 671 (7th Cir. 2009).
In sum, the plaintiff’s motion to amend the complaint will be granted and the
proposed amended complaint will be the operative complaint in this action. The plaintiff
may proceed on an Eighth Amendment deliberate indifference to a serious medical need

3

claim against defendants Billings, Neil, and Bender in their individual capacities. The Court
declines to accept jurisdiction over plaintiff’s medical malpractice claim. As set forth herein,
the remaining claims and defendants will be dismissed.
The court will deny without prejudice the defendants’ motions for summary
judgment. Once the defendants have answered the amended complaint, the court will issue
a Scheduling Order setting deadlines for the completion of discovery and filing dispositive
motions.
IT IS THEREFORE ORDERED that the plaintiff’s motion to amend the
complaint (Docket # 26) is granted as set forth herein. The proposed amended complaint
is the operative complaint in this action. The plaintiff may proceed on an Eighth Amendment
claim against defendants Billings, Neil, and Bender.

The Court declines to accept

jurisdiction over plaintiff’s medical malpractice claim. The remaining claims and defendants
are dismissed.
IT IS FURTHER ORDERED that the defendants file a responsive pleading
to the amended complaint.
IT IS FURTHER ORDERED that defendants Billings, Neil, and Nygren’s
motion for summary judgment (Docket # 22) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that defendant Bender’s motion for summary
judgment (Docket # 28) is DENIED WITHOUT PREJUDICE.

4

IT IS FURTHER ORDERED that the plaintiff’s motion to stay discovery and
responses (Docket # 32) is DENIED AS MOOT.
Dated at Milwaukee, Wisconsin, this 28th day of January, 2014.
SO ORDERED,

HON. RUDOLPH T. RANDA
U. S. District Judge

5