Reed v. Columbia St Mary's Hospital

Filing 22

ORDER signed by Judge Rudolph T. Randa on 4/24/2015. 4 Reed's motion for appointment of counsel GRANTED to the extent that the Court will attempt to recruit counsel to represent Reed in this action. 3 Reed's petition for leave to proceed IFP GRANTED. Counts IV and V DISMISSED without prejudice for failure to state a claim. US Marshal to serve copy of Complaint and attachments, summons, and this Order upon Defendant pursuant to FRCP 4. (cc: all counsel, via mail to Linda Reed)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
LINDA REED,
Plaintiff,
-vs-

Case No. 14-C-330

COLUMBIA ST. MARY’S HOSPITAL,
Defendant.

DECISION AND ORDER
Following the issuance of the Court of Appeals’ mandate vacating
this Court’s decision and order dismissing this action for lack of jurisdiction
and remanding the case for further proceedings, Reed v. Columbia St.
Mary’s Hosp., No. 14-2592, 2015 WL 1404327 (7th Cir. Mar. 30, 2015), this
matter is before the Court on pro se Plaintiff Linda Reed’s (“Reed”) petition
for leave to proceed in forma pauperis (“IFP”) in this action alleging
disability-related discrimination and retaliation by Defendant Columbia
St. Mary’s Hospital (“Columbia”) during her March 2012 stay there, and
her motion for appointment of counsel. (ECF Nos. 3, 4.)
Leave to Proceed IFP
In order to authorize a litigant to proceed IFP, the Court must make
two determinations: first, whether the litigant is unable to pay the costs of

commencing this action; and second, whether the action is frivolous or
malicious. 28 U.S.C. §§ 1915(a) and (e)(2)(B)(i). The Court must deny a
request to proceed IFP if (1) the allegation of poverty is untrue; (2) the
action is frivolous; (3) the action fails to state a claim; or (4) the action
seeks monetary relief against an immune defendant. 28 U.S.C. §
1915(e)(2).
By her petition and affidavit to proceed IFP, Reed avers that she is
single and receives $106 in public assistance and $973 in disability
compensation each month. Reed owns a 2008 Honda Accord worth $3,000,
but owes $2,400 on the car. She has $93 in cash or in an account. Reed’s
monthly expenses of $974 are about $100 less than her monthly income.
Reed has satisfied the requirements of 28 U.S.C. § 1915(a) by
demonstrating that she is unable to pay the $350 filing fee for this action.
The Court of Appeals’ decision addresses the five claims in Reed’s
Complaint: failure to accommodate/discrimination in violation of Title III of
the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12182 (Count I)
and Section 504 of the Rehabilitation Act (the “Rehabilitation Act”), 29
U.S.C. § 794 (Count II); retaliation for engaging in protected activity in
violation of the ADA and Rehabilitation Act (Count III); violation of
freedom of speech and due process rights under the First and Fourteenth
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Amendments actionable pursuant to 42 U.S.C. § 1983 (Count IV); and,
violation of the Equal Protection Clause of the Fourteenth Amendment
actionable pursuant to 42 U.S.C. § 1983 (Count V). The following factual
allegations of the Complaint are taken as true.
Reed has tardive dyskinesia, a neurological disorder that causes
involuntary facial and limb movements and makes speaking difficult,
requiring Reed to use a battery-operated computer to communicate; posttraumatic stress disorder; bipolar disorder; and acute anxiety.
In March 2012, Reed went to Columbia hoping to obtain alternative
treatment for her disorders rather than the psychotropic medications she
was taking. Overnight Reed gave her computer to the nurses so that its
battery could be charged behind the nursing station. On one occasion the
nurses refused Reed’s request to bring her computer from where it had
been charging. When she repeated her request, the staff retaliated against
her by grabbing her and throwing her into a “seclusion room.” Staff
members summoned Reed to a meeting with a doctor to discuss her
discharge and, still without her computer, she was unable to communicate.
When Reed was discharged, her request to call her case manager was
refused by hospital staff, again because of her disabilities. To retaliate
further, the hospital staff had Reed escorted out of the hospital by security
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guards, who injured her in the process.
Reed’s Complaint states arguable claims for relief for violation of
Title III of the ADA and the Rehabilitation Act, see Reed, 2015 WL 1404327
at *4, and, therefore, she will be allowed to proceed against Columbia on
Counts I, II and III.
However, Reed’s § 1983 claims fail to state a cause of action because
the Complaint gives no indication that Columbia acted under the color of
state law. See id. Therefore, Counts IV and V are dismissed without
prejudice. The Court is aware that “[w]hen a complaint fails to state a
claim for relief, the plaintiff should ordinarily be given an opportunity, at
least upon request, to amend the complaint to correct the problem if
possible.” Bogie v. Rosenberg, 705 F.3d 603, 608 (7th Cir. 2013). Leave to
amend need not be granted, however, if it is clear that any amendment
would be futile. Garcia v. City of Chi., 24 F.3d 966, 970 (7th Cir. 1994).
In this case, even if Reed could plead that Columbia receives federal
funds, “[t]he receipt of federal funds alone is not sufficient to establish
state action.” Schwerdtfeger v. Alden Long Grove Rehab. & Health Care
Ctr., Inc., Case No. 13 C 8316, 2014 WL 1884471, at *5 (N.D. Ill. May 12,
2014) (quoting Turner v. Jackson Park Hosp., 264 Fed. Appx. 527, 530 (7th
Cir. 2008)). Thus, at this juncture, Reed will not be given leave to amend
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Counts IV and V of her Complaint.
Accordingly, Reed’s petition for leave to proceed IFP is granted, and
she will be allowed to proceed on Counts I, II, and III of her Complaint.
Appointment of Counsel
Reed also filed a motion for appointment of counsel stating that she
cannot afford to pay an attorney. She names three attorneys who declined
to represent her in this action. “Although ‘[t]here is no right to courtappointed counsel in federal civil litigation,’ Olson v. Morgan, 750 F.3d 708,
711 (7th Cir. 2014), a district court has discretion to recruit counsel to
represent an indigent plaintiff under 28 U.S.C. § 1915(e)(1).” Henderson v.
Ghosh, 755 F.3d 559, 564 (7th Cir. 2014). If, as here, a plaintiff has made a
reasonable attempt to obtain counsel, the Court asks, “given the difficulty
of the case, does the plaintiff appear competent to litigate it [her]self?”
Santiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010) “The question is
whether the plaintiff appears competent to litigate [her] own claims, given
their degree of difficulty, and this includes the tasks that normally attend
litigation: evidence gathering, preparing and responding to motions and
other court filings, and trial.” Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir.
2007). The Court also considers such factors as the plaintiff’s “literacy,
communication skills, education level, and litigation experience.” Id.
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While Reed has the ability to communicate well in writing and has
demonstrated that she is able to present her claims and make written
arguments, the impairment of her verbal communication abilities would
significantly limit her ability to engage in activities inherent in federal
litigation such as conferring with opposing counsel, participating in court
conferences, questioning witnesses during depositions or at trial, and
making and responding to evidentiary objections during such proceedings.
Adjustments could be made, but Reed’s inability to communicate verbally
and her use of a computer to assist her could significantly impair her
ability to perform many tasks throughout this litigation; therefore, the
Court will attempt to recruit counsel to represent Reed.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Reed’s petition for leave to proceed IFP (ECF No. 3) is GRANTED;
Counts IV and V are DISMISSED without prejudice for failure to
state a claim;
The United States Marshal must SERVE a copy of the Complaint
and the attachments, the summons, and this Decision and Order upon
Columbia pursuant to Federal Rule of Civil Procedure 4. Reed is advised
that Congress requires the United States Marshals Service to charge for
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making or attempting such service. 28 U.S.C. § 1921(a). The fee for waiverof-service packages is $8.00 per item. 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 United States Marshals Service because IFP plaintiffs are
unable to pay the filing fee, it has not made any provision for these fees to
be waived either by the Court or by the United States Marshals Service.
Reed is NOTIFIED that from now on she is required, under Federal
Rule of Civil Procedure Rule 5(a), to send a copy of every paper or
document filed with the Court to the opposing party or, if the opposing
party is represented by counsel, to counsel for that party. See Fed. R. Civ.
P. 5(b). If Reed does not have access to a photocopy machine, she may send
out identical handwritten or typed copies of any documents. The Court may
disregard any papers or documents which do not indicate that a copy has
been sent to the opposing party or that party’s attorney. Reed 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's office 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.
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Reed’s motion for recruitment of counsel (ECF No. 4) is GRANTED
to the extent that the Court will attempt to recruit counsel to represent her
in this action.
Dated at Milwaukee, Wisconsin, this 24th day of April, 2015.
BY THE COURT:

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

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