Hawkins v. Strahota et al

Filing 12

DECISION AND ORDER signed by Judge Lynn Adelman on 8/24/15 denying without prejudice 3 Motion to Appoint Counsel; granting 4 Motion for Leave to Proceed in forma pauperis. Further ordering that defendants Kris Lyon, Nancy Garcia, Donna Larson, G. A. Vick, and Donald Strahota are DISMISSED. Further ordering that copies of plaintiffs complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on Belinda Schrubbe, Brian Greff, N. Kamphuis, Tonia Moon, William Pollard, and Lori Alsum and these defendants shall file a response to the complaint within sixty days of receiving electronic notice of this order. Further ordering the Secretary of the Wisconsin Department of Corrections or his designee to collect from plaintiffs prisoner trust account the $322.30 balance of the filing fee as set forth herein. (cc: all counsel, via USPS to plaintiff, Warden-WCI) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MARCUS D. HAWKINS,
Plaintiff,
v.

Case No. 15-cv-872

WARDEN DONALD STRAHOTA, et al.,
Defendants.

SCREENING ORDER
Plaintiff, a Wisconsin state prisoner, filed a pro se complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated. This matter is now before me on
plaintiff’s motion for leave to proceed in forma pauperis, his motion to appoint counsel, and
for screening of his complaint.
The Prison Litigation Reform Act gives courts discretion to allow prisoners to
proceed with their lawsuits without pre-paying the $350 filing fee, as long as they comply
with certain requirements. 28 U.S.C. §1915. One of those requirements is that the
prisoner pay an initial partial filing fee. On July 21, 2015, I assessed an initial partial filing
fee of $27.70. Plaintiff paid that fee on August 18, 2015. I will grant plaintiff’s motion to
proceed in forma pauperis, and plaintiff may the remainder of the fee as set forth at the
end of this order.
Federal law requires that I screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a). I must dismiss a complaint or portion thereof if the prisoner has raised 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).
To state a cognizable claim under the federal notice pleading system, a plaintiff is
required to provide a “short and plain statement of the claim showing that [he] is entitled
to relief[.]” Fed. R. Civ. P. 8(a)(2). It is not necessary for a plaintiff 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 Atlantic 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, 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 a 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 should follow the principles
set forth in Twombly by first, “identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations. Id. If there are well-pleaded factual
allegations, courts must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.

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To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he
was deprived of a right secured by the Constitution or laws of the United States; and 2) the
deprivation was visited upon him by a person or persons acting under color of state law.
Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). I am obliged to give plaintiff’s pro se allegations,
“however inartfully pleaded,” a liberal construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff alleges that in 2006, after having knee surgery, his doctor instructed that he
not wear corrections shoes but be permitted to purchase shoes of his choosing. Beginning
in mid-2014, plaintiff began to complain about pain in his feet and requested that he be
permitted to purchase shoes outside of those approved by the institution. In March 2015,
plaintiff went to Aljun (it is unclear from plaintiff’s complaint whether this is a medical facility
or a medical professional) who recommended a particular institution-approved shoe.
Plaintiff alleges that the institution instructed Aljun to recommend only institution-approved
footwear. The shoes were ordered for plaintiff, but it is unclear from his complaint when
he received the shoes.
Plaintiff alleges that he continues to experience foot pain and that the pain is
worsening. He alleges his foot is covered in bloody blisters caused by the shoe. His
complaints and requests that be he allowed to order a shoe outside of those approved by
the institution were denied.
To state a claim for deliberate indifference to a serious medical need, a plaintiff
must allege that he suffers from a serious medical condition and that the defendants knew
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of his condition and the risk it posed but disregarded the risk. Pyles v. Fahim, 771 F.3d
403, 409 (7th Cir. 2014). Something more than negligence or even malpractice is required.
Id. Plaintiff satisfies the first prong of this test. He alleges that, following knee surgery in
2006, it was deemed medically necessary that plaintiff be given appropriate footwear. In
addition, plaintiff has experienced serious, consistent pain and has had bloody blisters on
his foot. The second prong requires that each defendant knew of this condition and
showed deliberate indifference to it.
Plaintiff cannot satisfy the second prong with regard to Kris Lyon, Nancy Garcia,
Donna Larson, or G. A. Vick. According to the complaint, each of these defendants, when
notified of plaintiff’s complaints, promptly referred plaintiff to the person or committee who
was authorized to grant plaintiff’s request or who was qualified to further assess plaintiff’s
condition. Nothing in plaintiff’s complaint indicates that these defendants were indifferent
to plaintiff’s medical needs, so they will be dismissed.
However, plaintiff has successfully stated a deliberate indifference claim against
Belinda Schrubbe, Brian Greff, N. Kamphuis, Tonia Moon, and Lori Alsum. Plaintiff
informed these defendants that his foot pain was worsening, the institution-approved shoe
was making the pain worse, and a doctor had previously ordered that he be allowed to
wear non-institution-approved footwear, yet these defendants ignored his requests for new
shoes and insisted that he keep the shoes that had been ordered for him. These
allegations are sufficient at this stage to state a claim.
Plaintiff may also proceed on a negligence claim against Schrubbe, Greff,
Kamphuis, Moon, and Alsum. To prevail on this claim, plaintiff will ultimately have to prove

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that there was (1) a breach of (2) a duty owed (3) that resulted in (4) harm to plaintiff. Paul
v. Skemp, 2001 WI 42 ¶ 17, 242 Wis.2d 507, 520 (2001).
Finally, plaintiff may proceed on his claim that warden William Pollard failed to
intervene in the violation of his rights despite plaintiff informing Pollard of the situation.
Plaintiff’s claim against Donald Strahota will be dismissed because Plaintiff does not
mention Strahota in his allegations (he refers to a letter he wrote to “the warden” but
Strahota was not the warden at the institution during the time of plaintiff’s complaints).
Plaintiff also expresses an intent to state a claim for retaliation, but he fails to do so.
To state a First Amendment retaliation claim, plaintiff must allege 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.” Gomez
v. Randle, 680 F.3d 859, 866-67 (7th Cir. 2012) (quoting Bridges v. Gilbert, 557 F.3d 541,
546 (7th Cir. 2009)). Plaintiff does not allege that he engaged in activity protected by the
First Amendment, so he may not proceed with this claim.
In summary, plaintiff may proceed on his deliberate indifference and negligence
claims against Belinda Schrubbe, Brian Greff, N. Kamphuis, Tonia Moon, and Lori Alsum;
he may also proceed on his failure to intervene claim against William Pollard. However,
Kris Lyon, Nancy Garcia, Donna Larson, G. A. Vick, and Donald Strahota are dismissed.
Motion for Appointment of Counsel
Plaintiff has also filed a motion seeking appointment of counsel. He states that he
is unable to afford counsel, the issues in this case are complex, and he has limited legal
knowledge or access to legal resources. Plaintiff also requests that Daniel Anthony Peace,
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and inmate who has helped him with his lawsuit so far, be allowed to accompany him to
trial.
I have 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, litigants must make a reasonable attempt to secure private counsel on their own.
Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).

In this district, courts require that a

plaintiff contact at least three attorneys to inquire about representation; he may do this by
phone or by letter. Plaintiff must then provide me with the names of the attorneys he
contacted, copies of the letters he mailed to the attorneys (if applicable and available), and,
if possible, a summary of the attorneys’ responses.
Once plaintiff demonstrates he has made a reasonable attempt to secure counsel
on his own, I will 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 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.
Plaintiff has not satisfied the first step in the process described above, and he must
do so before I will consider appointing counsel to represent him. In any event, it appears
that plaintiff will have assistance from another inmate while he navigates the initial stages
of litigation. Based on plaintiff’s filings, which are detailed, organized, and easy to
understand, it appears that he is capable of doing this without an attorney representing
him. I will deny plaintiff’s motion at this time. In addition, I will deny plaintiff’s request that
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Mr. Peace be allowed to accompany him to a trial. If a trial should occur, it is a long way
off, and plaintiff may renew his request at a later date if he would like.
IT IS THEREFORE ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis (Docket #4) is GRANTED.
IT IS FURTHER ORDERED that plaintiff’s motion for the appointment of counsel
(Docket #3) is DENIED without prejudice.
IT IS ALSO ORDERED that defendants Kris Lyon, Nancy Garcia, Donna Larson,
G. A. Vick, and Donald Strahota are DISMISSED.
IT IS FURTHER ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of plaintiff’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice
for service on Belinda Schrubbe, Brian Greff, N. Kamphuis, Tonia Moon, William Pollard,
and Lori Alsum.
IT IS ALSO ORDERED that, pursuant to the informal service agreement between
the Wisconsin Department of Justice and this court, Belinda Schrubbe, Brian Greff, N.
Kamphuis, Tonia Moon, William Pollard, and Lori Alsum shall file a responsive pleading
to the complaint within sixty days of receiving electronic notice of this order.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from plaintiff’s prisoner trust account the $322.30
balance of the filing fee by collecting monthly payments from plaintiff’s prison trust account
in an amount equal to 20% of the preceding month’s income credited to the prisoner’s trust
account and forwarding payments to the Clerk of Court each time the amount in the

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account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be
clearly identified by the case name and number assigned to this action.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined.
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing Program, plaintiff
shall submit all correspondence and case filings to institution staff, who will scan and e-mail
documents to the Court. The Prisoner E-Filing Program is in effect at Dodge Correctional
Institution, Green Bay Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility and, therefore, if plaintiff is no longer incarcerated at
one of those institutions, he will be required to submit all correspondence and legal
material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
Plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, plaintiff 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
plaintiff’s legal rights.
Dated at Milwaukee, Wisconsin, this 24th day of August, 2015.
s/ Lynn Adelman
______________________
LYNN ADELMAN
District Judge

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