Madden v. Luy et al

Filing 31

ORDER signed by Judge Rudolph T. Randa on 12/4/2013. 17 MOTION to Amend/Correct Complaint GRANTED IN PART and DENIED IN PART. Plaintiff may proceed on second amended complaint against Defendants Dr. David Foley and Dr. Enrique Luy; he may not proce ed against UW Madison Hospital and Wisconsin Dept. of Corrections. US Marshal to serve Defendant Foley with second amended complaint. Defendants to file answer to second amended complaint. 18 MOTION to Appoint Counsel DENIED. 21 MOTION to Intervene DENIED. 24 MOTION for Preliminary Injunction/Temporary Restraining Order DENIED. (cc: all counsel, via US mail to Robert Madden at New Lisbon Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ROBERT MADDEN,
Plaintiff,
-vs-

Case No.

13-CV-549

DR. ENRIQUE LUY,
Defendant.

ORDER

The plaintiff has filed a motion to amend the complaint along with a proposed
second amended complaint. He seeks to reinstate Dr. Foley, the Wisconsin Department of
Corrections (DOC), and UW Madison Hospital as defendants related to his Eighth
Amendment medical care claim. The Court dismissed defendant Dr. Foley, the DOC, and
UW Madison Hospital when it screened the amended complaint. Here, the second amended
complaint includes allegations to state an Eighth Amendment medical care claim against Dr.
Foley. However, the plaintiff may not proceed against the DOC or UW Madison Hospital
because they are not suable entities under 42 U.S.C. § 1983.
Next, the plaintiff has filed a renewed motion to appoint counsel. He contends
that an attorney can properly investigate the defendants and that the issues in this case are
complex and best argued by an attorney. The plaintiff also asserts that the inmate who has
been assisting him with this case will be transferring to another institution soon.

The court has discretion to recruit counsel to represent a litigant who is unable
to afford one in a civil case. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013); 28 U.S.C.
§ 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
As a threshold matter, a litigant must make a reasonable attempt to secure private counsel on
his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). If the plaintiff makes a
reasonable attempt to secure counsel, the court must examine “whether the difficulty of the
case—factually and legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.” Navejar, 781 F.3d at 696 (citing Pruitt, 503 F.3d at 655). This
inquiry focuses not only on the plaintiff’s ability to try his case, but also includes other “tasks
that normally attend litigation” such as “evidence gathering” and “preparing and responding
to motions.” Id.
In this case, the plaintiff has attempted to recruit an attorney. However, he still
appears competent to proceed on his own at this stage of the proceedings. The plaintiff has
been transferred to another institution since he filed this motion and the quality of his filings
remains high. Moreover, the issues in his medical care claim are not unduly complex at this
time. Thus, the plaintiff’s request for pro bono counsel will be denied.
The plaintiff has filed a motion to intervene. He also filed a motion for an
injunction and temporary restraining order. These motions request the same relief and the
Court considers them jointly. The plaintiff seeks an order prohibiting the head nurse at
Racine Correctional Institution acting in concert with the defendant from transferring him

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to New Lisbon Correctional Institution (NLCI) or any other prison, and from retaliating
against him. The plaintiff alleges that the prison medical facility at NLCI is not a hospital
where he may receive better medical treatment but rather is a facility where prisoners are sent
when they file a civil action against prison officials. He also asserts that he will die if
transferred to NLCI.
The defendant contends that the Court should deny the plaintiff’s motion
because his assertions are untrue. According to the defendant, the plaintiff was transferred
to NLCI on October 25, 2013 because of his unmet program needs and because DOC staff
concluded that a transfer to NLCI was in the best interest of his medical management plan.
(Affidavit of DOC Director of Bureau of Health Services James Greer [Greer Aff.] ¶¶ 1112.) The plaintiff was refusing medical treatment at his former institution and staff hopes
that he will agree to cooperate with the NLCI health care team to manage his medical
concerns. (Greer Aff. ¶ 14.) The transfer was not retaliatory. (Greer Aff. ¶ 30.) The
facilities at NLCI are adequate to manage the plaintiff’s medical needs. (Greer Aff. ¶ 31.)
The factors considered in ruling on a temporary restraining order mirror those
on a motion for a preliminary injunction. 11A Charles Alan Wright, et al., Federal Practice
and Procedure § 2951 (2d ed. 2013). The applicant must demonstrate that he is reasonably
likely to succeed on the merits, that he is experiencing irreparable harm that exceeds any
harm his opponent will suffer if the injunction issues, that he lacks an adequate remedy at
law, and that the injunction would not harm the public interest. Christian Legal Soc’y v.

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Walker, 453 F.3d 853, 859 (7th Cir. 2006). “If the moving party meets this threshold burden,
the district court weighs the factors against one another in a sliding scale analysis . . . which
is to say the district court must exercise its discretion to determine whether the balance of
harms weighs in favor of the moving party or whether the nonmoving party or public interest
will be harmed sufficiently that the injunction should be denied. Id.; see Joelner v. Vill. of
Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004).
Here, there is no support in the record that the plaintiff’s recent transfer to
NLCI was retaliatory or that he will receive substandard medical care at NLCI. To the
contrary, the defendant offers a non-retaliatory reason for the transfer and avers that the
medical care available at NLCI and Racine Correctional Institution, the plaintiff’s former
institution, are similar. In addition, at this stage the plaintiff has not demonstrated a
reasonable likelihood of success on the merits.

As such, his request for preliminary

injunctive relief will be denied.
IT IS THEREFORE ORDERED that the plaintiff’s motion to amend the
complaint (Docket 17) is granted in part and denied in part. The plaintiff may proceed
on the second amended complaint against defendants Dr. David Foley and Dr. Enrique Luy;
he may not proceed against UW Madison Hospital and the Wisconsin Department of
Corrections.
IT IS FURTHER ORDERED that the United States Marshal serve defendant
Dr. David Foley with the second amended complaint.

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IT IS FURTHER ORDERED that the defendants file an answer to the second
amended complaint.
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint counsel
(Docket 18) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion to intervene (Docket
21) is DENIED.
IT IS FURTHER ORDERED that the plaintiff’s motion for an injunction and
temporary restraining order (Docket 24) is DENIED.
Dated at Milwaukee, Wisconsin, this 4th day of December, 2013.
SO ORDERED,

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

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