Poff v. Pollard et al

Filing 11

ORDER signed by Judge Rudolph T. Randa on 2/17/2016. Defendants Belinda Schrubbe, Mr. Tuckwell (WCI Food Service Manager), William Pollard and Dr. Reinen DISMISSED from this action pursuant to 28 U.S.C. §1915A(b)(1). Defendant Moon to file responsive pleading within 60 days. (cc: all counsel, via mail to Jeff Poff at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFF POFF,
Plaintiff,
-vs-

Case No. 15-CV-954

WILLIAM POLLARD, WCI Warden,
DR. REINEN, WCI Doctor,
JOHN DOE AND JANE DOE,
WCI DENTAL SUPERVISOR,
THE DENTAL DIRECTOR,
THE DENTAL DOCTOR,
BELINDA SCHRUBBE,
MR. TUCKWELL, WCI Food Service Manager, and
TONYA MOON, ICE Secretary, et al.,
Defendants.

DECISION AND ORDER
On September 23, 2015, the Court ordered Jeff Poff to file an
amended complaint curing several deficiencies identified in the original
complaint. (ECF No. 6).

The plaintiff filed an amended complaint on

October 13, 2015. (ECF No. 9). Therefore, this matter is before the Court
for screening of the plaintiff’s amended complaint pursuant to 28 U.S.C.
§ 1915A.
In the original complaint, the plaintiff sufficiently pled an Eight
Amendment violation involving delayed medical treatment for a cracked
tooth. However, he did not provide enough information to determine who

was personally involved in his dental care. Specifically, he did not allege
any personal involvement by named defendants Reinen, Schrubbe, Pollard,
Tuckwell, and Moon, and he did not identify who within the “HSU Dental
Department” contributed to the delay in his dental care. Therefore, the
Court ordered the plaintiff to file an amended complaint detailing each
defendant’s personal involvement in the action.
The plaintiff’s amended complaint cures some of the deficiencies
described above. However, he still fails to allege personal involvement by
defendants Reinen, Schrubbe, Pollard, and Tuckwell. Therefore, these four
defendants will be dismissed from the action.
Reinen and Schrubbe are not mentioned in the complaint at all
apart from a short description of their job title. Therefore, Reinen and
Schrubbe will be dismissed from the action.
Pollard and Tuckwell are mentioned in the complaint, however,
neither was personally involved in the underlying constitutional violation.
The plaintiff alleges that Pollard is the Warden of Waupun Correctional
Institution and that he should therefore be liable for all constitutional
violations that occur at the institution. The plaintiff alleges that Tuckwell
is the food services manager at Waupun Correctional Institution and that
he should be liable for all injuries caused by foreign objects in the
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institution’s food. Neither allegation implicates personal involvement by
either individual in the actual constitutional violation: the delay in dental
care.
Under § 1983, government employees are liable for “their own
misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d 592, 596
(7th Cir. 2009). “Public officials do not have a free-floating obligation to
put things to rights, disregarding rules…along the way.” Id. at 595.
“Bureaucracies divide tasks” and “no prisoner is entitled to insist that one
employee do another’s job.” Id. Thus, liability under the statute depends
on each defendant’s knowledge and intentional acts. See id. at 594.
The plaintiff does not allege that Pollard or Tuckwell personally
contributed to the delay in his dental care. Pollard and Tuckwell are only
included in the complaint to the extent that they are vicariously liable, or
negligent, due to their positions within the institution.

Indeed, the

plaintiff cannot insist that Pollard and Tuckwell be responsible for errors
that occurred in his dental care when neither worked in the dental
department or participated in his dental care in any way.

Therefore,

Pollard and Tuckwell will be dismissed from the action.
With respect to Tonya Moon, the plaintiff alleges that she “basically
ignored Plaintiff’s pleas and submissions to her office.” (ECF No. 9 at 5).
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Under § 1983, “refusing to do her job” or “routinely send[ing] each
grievance to the shredder without reading it” might be a ground for
liability. Burks, 555 F.3d at 595. Therefore, the plaintiff may proceed on a
claim against Moon for failure to investigate and handle his inmate
complaints.
Finally, the caption of the amended complaint names defendants
“WCI Dental Supervisor,” “The Dental Director,” and “The Dental Doctor.”
(ECF No. 9). The amended complaint also includes a paragraph, ¶ 5, which
alleges that “John/Jane Doe” nurses, technicians, assistant hygienists, and
other assistance personnel delayed dental treatment and left the plaintiff
in extreme pain for months. (ECF No. 9 at 2).

All of these unnamed

individuals are presumably actors within the “HSU Dental Department”
who were either present during his dental appointments or who denied his
dental requests. Although the plaintiff is unable to name these individuals
now, he will have an opportunity to identify these individuals through
discovery. See Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 555 (7th
Cir. 1996). Therefore, the plaintiff may proceed on a claim against these
unnamed defendants for delayed medical treatment of his cracked tooth.
In summary, Reinen, Schrubbe, Pollard, and Tuckwell will be
dismissed from the action because the plaintiff failed to allege personal
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involvement in the constitutional violation. Moon, “the Dental Supervisor,”
“the Dental Director,” “the Dental Doctor,” and any “John/Jane Does” from
the “HSU Dental Department” who may have been present during the
dental appointments or may have denied the plaintiff’s dental requests
remain in the action.
ORDER
IT IS THEREFORE ORDERED THAT defendants Reinen,
Schrubbe, Pollard, and Tuckwell are DISMISSED from the action
pursuant to 28 U.S.C. §1915A(b)(1).
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 state
defendant Tonya Moon.
IT IS ALSO ORDERED that defendant Moon shall file a
responsive pleading to the complaint within sixty days of receiving
electronic notice of this order.
IT IS ALSO ORDERED that, pursuant to the Prisoner E-Filing
Program, the plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. The
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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 the 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
The 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, 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 at Milwaukee, Wisconsin, this 17th day of February, 2016.
BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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