Williams v. Correctional Health Care et al

Filing 29

DECISION AND ORDER signed by Judge Pamela Pepper on 2/9/2016 DENYING 21 Plaintiff's Motion for a Court Order; DENYING WITHOUT PREJUDICE 23 Plaintiff's Motion to Appoint Counsel; DENYING 27 Plaintiff's Motion for Discovery and Mo tion for Production of Documents; and SCREENING 19 Plaintiff's Amended Complaint. The court DISMISSES Sheriff Christopher Schmaling as a defendant. Please refer to the order for additional pertinent details. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
TRAVIS DELANEY WILLIAMS,
Plaintiff,
v.

Case No. 14-cv-452-pp

D.L. BERGUM,
TROOPER JOHN DOE,
CARRIE L. BELLEN,
NURSE LESLIE,
NURSE TOM,
NURSE NICOLE,
PATRICK J. NOONAN,
SERGEANT MELISSA A. GONZALES,
LIEUTENANT FRIEND,
CAPTAIN WEARING,
CHRISTOPHER SCHMALING, and
NURSE PRACTITIONER JANE DOE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR A COURT
ORDER (DKT. NO. 21), DENYING WITHOUT PREJUDICE PLAINTIFF’S
MOTION TO APPOINT COUNSEL (DKT. NO. 23), DENYING PLAINTIFF’S
MOTION FOR DISCOVERY (DKT. NO. 27), DENYING PLAINTIFF’S MOTION
FOR PRODUCTION OF DOCUMENTS (DKT. NO. 27), AND SCREENING
PLAINTIFF’S AMENDED COMPLAINT (DKT. NO. 19)
______________________________________________________________________________
This case is before the court on a number of motions filed by the plaintiff,
and for screening of his amended complaint (Dkt. No. 19).
I.

Screening of the Plaintiff’s Complaint
A.

The Law Governing Screening of Complaints

The law requires the court to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or employee of a
1

governmental entity. 28 U.S.C. §1915A(a). The court must dismiss part or all of
a complaint if the plaintiff raises 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). The court may, therefore, dismiss a claim as frivolous
where it is “based on an indisputably meritless legal theory” or where the
“factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 110910 (7th Cir. 2003) (citations omitted).
To state a claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need to plead
specific facts, and his statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, a complaint that offers “labels and conclusions” or “formulaic
recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim,
2

a complaint must contain sufficient factual matter, accepted as true, “that is
plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must
be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege
that the defendants: 1) deprived of a right secured by the Constitution or laws
of the United States; and 2) acted under color of state law. Buchanan-Moore v.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of
N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se
allegations, “however inartfully pleaded,” a liberal construction. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
3

B.

The Plaintiff’s Allegations

On May 8, 2013, defendant state troopers D.L. Bergum and John Doe
arrested the plaintiff and took him to Wheaton All Saints Hospital in Racine.
Dkt. No. 19, p. 4. The doctor told the troopers that the plaintiff was not able to
walk due to preexisting injuries and new injuries from the car accident which
had occurred that day (the state troopers allegedly rammed the car the plaintiff
was driving). Id. The plaintiff alleges that the troopers ignored the doctor’s
statements, handcuffed the plaintiff, twisted his harms, and “forcefully
dragged/walked [the plaintiff] down the hall to the police car.” Id.
When they arrived at the Racine County Jail, the troopers did not tell
anyone that the plaintiff had been in a car accident or that he could not walk.
Id. The plaintiff alleges that the troopers did tell staff at the Jail that the
plaintiff was combative and refused to cooperate. Id. Unknown Jail staff
members dragged the plaintiff from the police car, down through the sally port
and through the Jail. Id. They threw the plaintiff into a holding cell; the
plaintiff hit his head on a wall and was knocked out. Id.
At some point, the plaintiff awoke and went through the intake process
with defendant Carrie L. Bellen. Id. at 5. During the intake process, the
plaintiff told Bellen that he was injured and needed a wheelchair and knee
braces. Id. He also told her that he was involved in a bad car accident and
reinjured his legs, knees, neck, and back; he questioned whether there should
not have been after-care papers from the doctor. Id. Bellen said nothing and
took items from the plaintiff; she did not say anything about the plaintiff
4

receiving medical care, pain pills, or a wheelchair. Id. The plaintiff refused to
take intake processing photos and fingerprints. Id. The plaintiff was placed
back in the cell and slept for days. Id. He missed several court dates. Id.
Days later, an unknown officer came with a wheelchair and took the
plaintiff to a shower area to change the plaintiff into jail clothes and take his
photos and fingerprints. Id. The officer then took the plaintiff to a cell in a
second floor unit. Id.
The plaintiff alleges that he spent days on the unit unable to walk; he
pulled himself along the floor like a lizard. Id. The plaintiff finally saw his
criminal public defender (for what the plaintiff says was the second time), who
got upset that the plaintiff’s clothes were dirty and bloody. Id. The attorney
spoke to a guard and told the guard that guard needed to get the plaintiff
medical attention. Id. The plaintiff alleges that he was placed in segregation an
hour after his attorney left. Id. at 6.
Days later, defendant Patrick J. Noonan told the plaintiff that he was
placed in segregation because he could not walk. Id. Noonan stated that the
plaintiff was classified as medical segregation. Id. However, the plaintiff was not
permitted to have his cell door open like another inmate with that
classification. Id. The plaintiff alleges that, at this point, he still had not seen
anyone from medical. Id. Noonan did not relay to anyone the plaintiff’s medical
condition and need to be seen, even though he told the plaintiff numerous
times that he would. Id. Noonan left the plaintiff dirty, bloody, and in pain. Id.

5

Nurse Tom finally screened the plaintiff for medical needs. Id. He came to
the plaintiff’s cell and expected the plaintiff to be able to walk. Id. The plaintiff
told Nurse Tom that he needed a wheelchair, and Nurse Tom went and got one
and then conducted a screening. Id. The plaintiff told Nurse Tom his medical
condition and that he had been in an accident and was supposed to attend
physical therapy. Id. The plaintiff also told Nurse Tom that he needed a
wheelchair, knee braces, and pain pills he was taking before he was arrested.
Id. The plaintiff offered to sign a medical release to get his records from his
private doctor. Id. Nurse Tom said he would have the release form for the
plaintiff to sign later that day, but he never brought it. Id. Nor did Nurse Tom
note that the plaintiff needed a wheelchair or knee braces. Id. The plaintiff did
not sign a medical release until approximately January 2014, “almost ten
months later.” Id.
Even after seeing the plaintiff a second time, Nurse Tom still did not get
the plaintiff the prescription medication the plaintiff was taking before his
arrest. Id. at 7. Nurse Tom did not note that the plaintiff needed a wheelchair
and knee braces. Id. Nor did he give the plaintiff any medicine for his many
cuts and abrasions. Id. Nurse Tom refused to give the plaintiff his medications
on several occasions. Id. The plaintiff complained to his attorney, and Nurse
Tom “mysteriously bec[ame] unemployed by the Racine County Jail.” Id.
The plaintiff submitted more requests for medical attention, and another
nurse saw him. Id. The nurse asked the plaintiff where he was picking up his
medications, and the plaintiff said Walmart. Id. The plaintiff got his
6

medications about two weeks later, including Simvastatin, Lisinopril,
Hydrochlorothiazide, and Acetaminophen. Id. He did not get his Tramadol. Id.
The plaintiff alleges that from May 2013 to April 2014, Nurse Practitioner
Jane Doe denied the plaintiff’s requests for pain pills, eye drops, a cotton
blanket, a wheelchair, knee braces, and compression socks. Id. The plaintiff
filed grievances, and finally got Ibuprofen three months after he requested it.
Id.
The plaintiff saw Nurse Practitioner Jane Doe numerous times for an eye
infection. Id. She prescribed Tears eye drops several times, which did no good.
Id. The plaintiff alleges that she lied twice, saying the plaintiff would see the
doctor about the infection. Id. The plaintiff did not see the doctor until a couple
of months later, after his condition got worse. Id. at 7-8. The doctor
immediately prescribed antibiotic eye drops. Id. at 8. When the plaintiff needed
more eye drops, he submitted a sick call slip asking to see the doctor. Id. Nurse
Practitioner Jane Doe blocked it and told the plaintiff she would renew his eye
drops, request a wheelchair, and bring him medical releases to sign. Id. She
did none of these things, which left the plaintiff in pain. Id.
The plaintiff filed a grievance, and Nurse Leslie saw the plaintiff. Id. She
verbally approved the eye drops, but the plaintiff did not get them for over a
month. Id. Nurse Leslie also told the plaintiff he would have access to a
wheelchair, but that did not happen. Id. The plaintiff missed numerous court
dates because he did not have a wheelchair. Id. Over a number of months,
Nurse Leslie denied the plaintiff pain pills, a double mattress, knee braces,
7

wheelchair use, antibiotic eye drops, and foot care. Id. In March or April of
2014, she told the plaintiff that she knew he was in a lot of pain and needed
surgeries, but there was nothing they were willing to do for him. Id. She asked
when he was getting out and said he could get help then. Id.
During many healthcare screenings, defendant Nurse Nicole told the
plaintiff that he would receive a cotton blanket, C-cream, eye drops, and a
lactulose refill, but he never received any of them. Id. at 10. Nurse Nicole also
assisted the doctor during many visits with the plaintiff. Id. She heard what the
doctor said the plaintiff should be given, but the plaintiff never received any
thing the doctor prescribed. Id. at 10-11. As a result, he incurred additional
sick call and doctor co-pays. Id. at 11.
According to the plaintiff, defendant Lt. Friend interfered with the
plaintiff’s medical treatment. Id. at 9. The plaintiff alleges that Lt. Friend said
he was part of the medical team, and thus was allowed to review the plaintiff’s
medical file, but that he denied the plaintiff’s treatment as he saw fit. Id.
Specially, Lt. Friend interfered with the plaintiff obtaining a double mattress
and medication refills. Id. The plaintiff asserts that his pain pills should have
been automatically renewed, but that Lt. Friend interfered such that the
plaintiff had to go through sick call and have his pills renewed each time. Id.
The plaintiff wrote to defendants Sergeant Melissa A. Gonzales about his
medical condition. Id. at 9. Gonzales responded that defendant Noonan already
had told her the defendant’s position, and told the plaintiff that she “[stood] by
her officer,” that the plaintiff would not be getting anything handicapped
8

accessible at the Jail and that the only times he would be able to use a
wheelchair would be for court dates, medical screenings, and attorney visits.
Id. The plaintiff rarely even got that much wheelchair use, and he missed many
court dates. Id.
The plaintiff alleged that defendant Captain Wearing answered
grievances the plaintiff wrote about the lack of medical care he received, but
condoned the staff’s actions. Id. at 10. Wearing ignored the plaintiff’s
statements about daily pain and swelling in his legs and offered no alternatives
to the medical staff at the Jail. Id.
After the plaintiff filed this lawsuit, a separate contractor was brought in
to review the plaintiff’s medical file. Id. At that time, the plaintiff finally had xrays taken, but he still received no relief from the discovered medical condition.
Id. The plaintiff does not provide any detail regarding that medical condition.
The plaintiff also alleges that he had one mattress in segregation before he filed
this lawsuit, but was not able to keep any mattress in segregation after he filed
the lawsuit, despite his (unspecified) medical condition.1 Id. The plaintiff does
not specify who made this decision regarding the mattress.
Finally, the plaintiff asserts that defendant Sheriff Christopher
Schmaling condoned the actions of the staff and allowed Wearing to answer a
letter the plaintiff had sent to Schmaling. Id.

 Earlier in the complaint, the plaintiff asserted that he needed a double
mattress “to elevate [his] legs to reduce daily swelling and pain,” but does not
state what condition caused the swelling or pain. Id. at 9.
1

9

The plaintiff seeks to proceed on constitutional medical care claims and
claims for violations of the Racine County Jail Healthcare Policy. Id. at 11. He
seeks monetary damages, and suggests that he is still suffering from
irreversible damage due to the defendants’ actions. Id.
Although the plaintiff named each defendant in both his or her individual
and official capacity, the complaint lays out facts relating only to individual
conduct of the defendants in their individual capacities. The plaintiff has not
alleged any facts that might prove some official policy or custom that caused a
constitutional violation—facts he would have to demonstrate if he were suing
the defendants in their official capacities. See, e.g., Potochney v. Doe, ___
F.Supp.2d ___, 2002 WL 31628214 at *3 (N.D. Ill. Nov. 21, 2001); Petty v. Cnty.
of Franklin, Ohio, 478 F.3d 341, 349 (6th Cir. 2007). Because the plaintiff has
alleged facts that support only claims against the defendants in their individual
capacities, those are the only claims the court will consider.
C. Application of the Law to the Allegations
1. Medical Care Claims
The plaintiff alleges medical care claims regarding the state troopers who
arrested him, and correctional and medical staff at the Jail.
Generally, a pretrial detainee’s right to medical care is “derived from the
Due Process Clause of the Fourteenth Amendment, which prohibits deliberate
indifference to his serious medical needs.” Burton v. Downey, 805 F.3d 776,
784 (7th Cir. 2015) (citing Pittman v. Cnty. of Madison, 746 F.3d 766, 775 (7th
Cir. 2014)). “This standard is essentially the same as the Eighth Amendment’s
10

prohibition against cruel and unusual punishment, which applies to convicted
prisoners.” Burton, 805 F.3d at 784 (citing Smego v. Mitchell, 723 F.3d 752,
756 (7th Cir. 2013)).
However, “the Fourteenth Amendment’s due process protections only
apply to a pretrial detainee’s confinement conditions after he has received a
judicial determination of probable cause.” Williams v. Rodriguez, 509 F.3d 392,
403 (7th Cir. 2007) (citing Lopez v. City of Chicago, 464 F.3d 711, 719 (7th Cir.
2006)). “Claims regarding conditions of confinement for pretrial detainees . . .
who have not yet had a judicial determination of probable cause . . . , are
instead governed by the Fourth Amendment and its objectively unreasonable
standard.” Id.
At this time, the court does not know whether the plaintiff was arrested
pursuant to a warrant; if he was, that would mean that the judge issuing the
warrant already had determined that probable cause existed to arrest him. Any
of the events that took place before a judge had made a probable cause
determination will be governed by the Fourth Amendment objectively
unreasonable standard. Any of the events the plaintiff describes that took place
after a judge made a determination of probable cause, but before conviction
and sentencing, will be governed by the Fourteenth Amendment’s “more
demanding” deliberate indifference standard. Lopez, 464 F.3d at 718.
The court finds that, regardless of which of these two standards applies,
the plaintiff has alleged sufficient facts to support claims that defendants
Troopers D.L. Bergum and John Doe (who ignored the doctor’s statement about
11

the plaintiff’s medical condition, and did not convey his medical information to
the staff at the Jail), Jail guard Carrie L. Bellen (who ignored the plaintiff’s
information about his condition and requests for medical care, and did not
share the information with other Jail staff), Nurses Leslie, Tom, and Nicole
(who delayed or refused the plaintiff medication and treatment), Lieutenant
Friend (who claimed to be part of the medical staff and denied the plaintiff
treatment), and Nurse Practitioner Jane Doe (who denied the plaintiff medical
treatment) either were deliberately indifferent to his medical needs, or were
objectively unreasonable in their treatment of him.
The plaintiff also has stated sufficient facts to support claims that
defendants Patrick J. Noonan, Sergeant Melissa A. Gonzales, and Captain
Wearing knew about the inadequate medical care the plaintiff received and
failed to take action to make the situation better. If the plaintiff had sued these
defendants solely because they were supervisors of other defendants, the court
would not allow him to proceed; §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). But
the plaintiff alleges that these defendants personally took or failed to take
action based on information they’d received; that is enough for the court to
allow him to proceed against those defendants personally.
The plaintiff’s only claim against defendant Schmaling, however, is that
he condoned the actions of his staff and allowed Wearing to answer a letter the

12

plaintiff sent to him. This is not enough to establish personal involvement by
Schmaling. The court will dismiss him as a defendant.
2. Retaliation
Near the end of his complaint, the plaintiff suggests that he was allowed
a mattress in segregation before he filed this lawsuit, but was not allowed the
mattress in segregation after he filed the lawsuit. He implies that someone
retaliated against him for filing the lawsuit by depriving him of the mattress. To
state a First Amendment retaliation claim, the plaintiff must plead 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 the
Defendants' decision to take the retaliatory action.” Bridges v. Gilbert, 557 F.3d
541, 546 (7th Cir.2009) (quoting Woodruff v. Mason, 542 F.3d 545, 551 (7th
Cir.2008)). The plaintiff does not explicitly state that the mattress was taken
away because he filed this lawsuit, but he implies as much. The problem with
this claim, however, is that the plaintiff does not identify which defendant was
responsible for taking away his mattress after he filed the lawsuit. The court
will not allow the plaintiff to proceed on a retaliation claim, because he does
not identify a defendant whom he believes retaliated against him.
3. Doe Defendants
The court has allowed the plaintiff to proceed on claims against Trooper
John Doe and Nurse Practitioner Jane Doe. Once the other defendants have
been served and have answered or otherwise responded to the complaint, the
13

plaintiff should use discovery requests to learn the true identities of the Doe
defendants.
II.

Plaintiff’s Motion for Court Order
On December 7, 2015, the plaintiff filed a motion for a court order or

ruling. Dkt. No. 21. In the top, right-hand corner of this pleading, he put listed
the case number as “14 CV 452.” In the top left-hand corner, he noted that
“Nurse Leslie et al” were the defendants. Id.
In the motion, the plaintiff stated that on July 15, 2015, he filed an
amended complaint. He refers to the amended complaint as a “motion,” and
asks the court to rule on it. He also says that in August, he filed a motion to
reconsider under Federal Rule of Civil Procedure 45, and asks the court for a
ruling on that motion. Id.
With regard to the plaintiff’s request that the court rule on his amended
complaint, the court acknowledges that it has taken some time to screen that
complaint. This order, however, constitutes the “ruling” that the plaintiff seeks,
and thus his motion for a “ruling” on a “motion” is moot.
The plaintiff is mistaken when he states that he filed a motion for
reconsideration in August; the plaintiff did not file any pleadings in this case
between July 20 and September 23, 2015, and he has not filed any motions to
reconsider in this case. The court notes that the plaintiff has filed numerous
cases in this court; perhaps, in asserting that he filed a motion in August, he is
confusing this case with one of his others. The court will deny the motion for a
court order.
14

III.

Plaintiff’s Motion for Discovery and Production of Documents

On January 15, 2016, the plaintiff filed a document entitled “Motion for
Discovery and Production of Documents.” Dkt. No. 39. Again, in the upper
right-hand corner of the first page, he reflects the case number: 14 CV 452. In
the upper left-hand corner of the first page, he lists all the defendants
discussed above. Id. at 1.
This document both asks the court to expedite an order requiring the
defendants to produce discovery, and lists various documents that he wants
the defendants to produce. He suggests that he has had difficulty obtaining his
medical records from the Racine County Jail. He indicates that he needs
discovery in this case, because in Williams v. Stauchie, et al., Case No. 14-CV1078, the Jail has not provided him with discovery, and in Williams v. Leslie, et
al., Case No. 14-CV-452, this court has refused to order discovery. Id. at 1.
The court has not entered a formal scheduling order in this case,
because up to now, the court had not screened the amended complaint. Until
the court screens the complaint, it is not clear who the defendants will be, and
so there is no way to serve those defendants with the complaint. The court does
not issue a scheduling order until it has screened the complaint and identified
the defendants against whom the plaintiff may proceed.
The court now has screened the amended complaint, and will order that
it be served on the defendants against whom the court has allowed the plaintiff
to proceed. Once they have answered, the court will issue a scheduling order.
At that point, the plaintiff should serve his discovery requests (including his list
15

of documents that he wants them to produce) on the defendants. It is too soon
for the plaintiff to serve those demands now; the defendants are not even aware
that he has sued them.
The court also notes that the plaintiff argues that he is asking this court
to order discovery because “District Judge Pamela Pepper[] will not order
discovery in case no. 452.” Id. The plaintiff again appears to have confused his
cases. This is case number 14-cv-452. I—Judge Pepper—am the assigned
district judge, but it is not true that I have refused to order discovery in this
case. Again, until I screened the complaint, I could not order that the
defendants be served, and so the defendants couldn’t answer, and so it is
premature for me to order discovery. The plaintiff’s case in Williams v. Stauchie
is in a different posture; it is a different case, and what happens in one case is
not a basis for asking for relief in another case. The court observes that the
defendant has so many open cases in this court that even he has trouble
keeping up with them. The court is working through all of these cases; it will
take time.
Because it is premature, the court will deny the plaintiff’s motion for
discovery and production of documents.

16

IV.

Plaintiff’s Motion to Appoint Counsel

On December 31, 2015, the plaintiff filed a motion to appoint counsel.
Dkt. No. 23. In that motion, he argues that he is unable to afford counsel, that
this case is complex, and that he has very little knowledge of civil law and only
a sixth grade level education. The plaintiff also submits that he has been
moved from a handicap-accessible unit to an ordinary unit and, as a result, he
cannot walk up and down the stairs. He also represents that he has been
denied access to a distance wheelchair, so he cannot go to the law library to
seek the continued help of the law clerk there. The plaintiff makes other
allegations of retaliation, including the discontinuation of his psychiatric
medication, which has caused his mental capacity to deteriorate. The plaintiff
further indicates that he broke his hand on September 28, 2015, which affects
his ability to write.
In a civil case, the court has discretion to decide whether to recruit a
lawyer for someone who cannot afford one. Navejar v. Iyola, 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). First, however, the person has to make a
reasonable effort to hire private counsel on their own. Pruitt v. Mote, 503 F.3d
647, 653 (7th Cir. 2007). In another one of his cases, the plaintiff submitted
several letters from attorneys declining to represent him. Although the requests
and denials should be case-specific, the court will find that the plaintiff has
met the threshold requirement under Pruitt.

17

As a result, the court must decide “whether the difficulty of the case –
factually and legally – exceeds the particular plaintiff’s capacity as a layperson
to coherently present it.” Navejar, 718 F.3d at 696 (citing Pruitt, 503 F.3d at
655). To decide that, the court looks, not only at the plaintiff’s ability to try his
case, but also at his ability to perform other “tasks that normally attend
litigation,” such as “evidence gathering” and “preparing and responding to
motions.” Id.
The plaintiff makes a number of serious allegations in this motion, and
in the supporting documents. This case, however, is about the plaintiff’s
interactions with staff at the Racine County Jail. If he has separate retaliation
or access-to-the-courts claims against staff members at Columbia (where he
currently is incarcerated), he must allege those in a new, different complaint.
This court must limit its inquiry to whether this plaintiff is competent to litigate
this particular case, which involves claims regarding the medical care and
accommodations he received after his arrest and during his time at the Jail.
The court considers the plaintiff competent to litigate this case at this time, for
the following reasons.
The defendants have not yet been served, and thus, they have not
answered. Once they do, and the court enters a scheduling order, the plaintiff
may use Federal Rules of Civil Procedure 33, 34, and 26, among others to
obtain written discovery from the defendants regarding his claims.
Given the current posture of the case, the court sees no present need for
the plaintiff to have access to the law library. When the time comes that he
18

does need to do legal research, and does need access to the law library, there
may be alternative ways that the plaintiff may access case law, such as
requesting cases without having to travel to the law library.
The plaintiff complains about an injured hand that makes it extremely
difficult to write, but he has been able to file a number of hand-written
documents in this case (and other cases) in the last month, and the court has
been able to read them. The plaintiff also submits that since his psychotropic
drugs were discontinued, his mental condition has deteriorated. Despite these
assertions, the plaintiff has managed to file a number of very lucid,
handwritten motions and other documents, not only in this case but in other
actions he has pending before the court. For example, for this motion, he filed
not only the motion itself, but also a brief in support of the motion, and a
sworn declaration. The plaintiff’s litigation of this case and others continues to
demonstrate his competence to represent himself, and the court will deny his
motion for appointment of counsel, without prejudice.
V.

Conclusion
The court ALLOWS the plaintiff to proceed on Fourth or Fourteenth

Amendment claims regarding the medical care and accommodations he
received (or did not receive) against defendants D.L. Bergum, Trooper John
Doe, Carrie L. Bellen, Nurse Leslie, Nurse Tom, Nurse Nicole, Lieutenant
Friend, and Nurse Practitioner Jane Doe. The court also ALLOWS the plaintiff
to proceed on claims that defendants Patrick J. Noonan, Sergeant Melissa A.

19

Gonzales, and Captain Wearing knew about the inadequate medical care the
plaintiff received and failed to take action to make the situation better.
The court DISMISSES Sheriff Christopher Schmaling as a defendant.
The court ORDERS that the United States Marshal shall serve a copy of
the complaint and this order upon the remaining defendants pursuant to
Federal Rule of Civil Procedure 4. The court advises the plaintiff that Congress
requires the U.S. Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages is
$8.00 per item mailed. 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
U.S. Marshals Service precisely because in forma pauperis plaintiffs are
indigent, it has not made any provision for these fees to be waived either by the
court or by the U.S. Marshals Service.
The court also ORDERS that the defendants who are served shall file a
responsive pleading to the complaint.
The court DENIES the plaintiff’s motion for court order. Dkt. No. 21. The
court DENIES WITHOUT PREJUDICE the plaintiff’s motion for appointment of
counsel. Dkt. No. 23. The court DENIES the plaintiff’s motion for discovery.
Dkt. No. 27. The court also DENIES the plaintiff’s motion for production of
documents. Dkt. No. 27.
The court further ORDERS that the plaintiff shall submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
20

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. Each filing will be
electronically scanned and entered on the docket upon receipt by the clerk. The
plaintiff need not mail copies to the defendants. All defendants will be served
electronically through the court’s electronic case filing system. The plaintiff
should also retain a personal copy of each document filed with the court.
The court further advises the plaintiff 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 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.
Dated in Milwaukee, Wisconsin this 9th day of February, 2016.

21