Oswald v. Pollard et al

Filing 11

ORDER signed by Judge Pamela Pepper on 9/6/2016 GRANTING 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee; SCREENING the Complaint and DISMISSING Defendants Stadtmueller, Pollard and Foster. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
DANIEL PERRY OSWALD,
Plaintiff,
v.

Case No. 16-cv-991-pp

WILLIAM POLLARD, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT
______________________________________________________________________________
The plaintiff, who is representing himself, is a prisoner at Waupun
Correctional Institution (WCI). He filed this lawsuit under 42 U.S.C. §1983,
Dkt. No. 1, along with a motion for leave to proceed without prepayment of the
filing fee, Dkt. No. 2. This order resolves that request and screens the plaintiff’s
complaint.
I.

Motion for Leave to Proceed without Prepayment of Filing Fee
The Prison Litigation Reform Act (PLRA) applies to this case because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA allows a court to give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as he meets certain
conditions. One of those conditions is a requirement that the plaintiff pay an
initial partial filing fee. 28 U.S.C. §1915(b).

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On August 2, 2016, the court ordered the plaintiff to pay an initial partial
filing fee of $26.74. Dkt. No. 6. The plaintiff paid the entire $350 filing fee on
August 29, 2016. Accordingly, the court will grant the plaintiff’s motion.
II.

Screening of the Plaintiff’s Complaint
The law requires the court to 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). The court must dismiss a complaint
or portion thereof 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) (quoting Neitzke v.
Williams, 490 U.S. 319, 325 (1989)). 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, 1109-10 (7th Cir. 2003) (internal citations omitted).
To state a cognizable 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
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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,
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 him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. BuchananMoore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
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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)).
A. The Plaintiff’s Allegations
On August 1, 2014, the plaintiff was examined off-site at the “U.W.M.
Spine Specialist/Clinic” for a “debilitating” back condition, consisting of a
deteriorating spine with multiple bulging discs and pinched nerves. Dkt. No. 1
at 5. The clinic recommended that the plaintiff be moved to a lower tier, a
recommendation that WCI immediately implemented. Id. In addition, on
October 1, 2014, health services approved the plaintiff for an elevator pass so
that he could go to medical and mental health treatments without having to
use the stairs. Id.
On November 13, 2014, the plaintiff was placed in segregation. Id. The
plaintiff notified the segregation officers of his elevator pass and alerted them
that the Special Needs Committee had approved his use of various items as a
result of ongoing medical problems. Id. at 6. These items included an extra
pillow (for his back), a washcloth and towel, adult diapers, and clean linen as
needed. Id. The Committee had approved the washcloth, towel, adult diapers,
and clean linen because the plaintiff suffers from incontinence and often wets
the bed at night. Id. at 7-8. He needs the extra towel, washcloth, and linens in
the event he soils himself during the night. Id.
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The officers in segregation allowed the plaintiff to use the elevator to
attend medical and mental health appointments from November 13 through
November 17, 2014. Id. at 6. However, on November 17, 2014, defendant
Christine DeYoung told the plaintiff that he did not need the elevator pass
while he was in segregation because “technically” there was no lower tier in
segregation. Id. The plaintiff explains that segregation “is like a bi-level house.”
Id. at 7. The officers are located on the main floor, with the inmates being
housed on upstairs and downstairs. Id. The plaintiff states that an inmate
must go up twelve steps to get to the upper level or down six stairs to get to the
lower level. Id.
The plaintiff states that he contacted defendant Belinda Schrubbe, the
health services manager, about segregation’s failure to honor his elevator pass,
but she replied that “technically” there is no first floor in segregation, so he did
not need to be accommodated. Id.
On November 21, 2014, defendant Jeffrey Manlove, the plaintiff’s treating
physician, examined the plaintiff. Id. The plaintiff informed him that
segregation officers were not honoring his elevator pass. Id. He also told
Manlove that his medical needs slip for items to accommodate his bed-wetting
condition was set to expire on December 5, 2014. Id. Manlove told the plaintiff
that he would look into both issues. Id.
On December 4, 2014, the plaintiff told DeYoung that his special needs
slip was set to expire the following day. Id. at 8. DeYoung said she would get an
updated slip, but she never returned. Id. The plaintiff alleges that from
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December 5, 2014 through December 17, 2014, he was denied (he does not
clarify by whom1) the items approved by the Special Needs Committee because
the slip expired. Id. The plaintiff states that he was forced to eat, sleep, and sit
(again, he does not clarify by whom) in urine-stained clothing and bedding.2 Id.
He was allowed to exchange his bedding once per week, and he was allowed to
exchange his clothes three times total. Id.
When the plaintiff complained that his slip had expired, the only
response he received explained that the Special Needs Committee meets only
once per month so he would have to wait. Id. On December 17, 2014, the
plaintiff received the updated slip. Id. at 9. He states that the staff gave him
clean linen and apologized for the delay. Id.
The plaintiff was released from segregation on December 29, 2014, at
which time his accommodations (lower tier, elevator pass) were reinstated. Id.
On January 20, 2015, DeYoung examined the plaintiff based on his
complaints of migraines, which were accompanied by blurry vision, vomiting
and extreme pain. Id. DeYoung told the plaintiff that she would consult with
Manlove, but according to the plaintiff, she did not. Id. On February 5, 2015,
the plaintiff saw DeYoung again; she explained that she had been busy and

 Although the plaintiff alleges that DeYoung, Schrubbe, and Manlove failed to
provide him with an updated slip, he does not allege that they are the ones who
refused to give him clean clothes or linen after he soiled himself.
2
 The plaintiff does not clarify how many days he lived in soiled clothing; he
states only that he wet the bed about four times per week, making it “plausible”
that he “went without these items and had to live without these basic life
necessities for at least ten to twelve days.” Id. at 8.  
1

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hadn’t spoken to Manlove, but she assured the plaintiff that she would. Id. at
10.
The plaintiff states that on February 5, 2015, Manlove verbally ordered
the migraine prescription Nortriptyline, but DeYoung failed to enter the order.
Id. The plaintiff filed inmate complaints and inquired about the medication for
his migraines, but DeYoung refused to check on the order and/or consult the
plaintiff’s medical file. Id. at 11. The plaintiff finally received the medication on
May 15, 2015. Id. He learned later that defendant Jane Doe #1 forgot to place
the order. Id.
Finally, the plaintiff states that on October 28, 2015, a nurse practitioner
(not a defendant) ordered an appointment with the U.W.M. Spine Clinic for his
ongoing back problems. Id. at 11-12. He alleges that Jane Doe #2 failed to
schedule the appointment. Id. The nurse practitioner followed up on February
23, 2016, discovered the appointment had not been scheduled, and demanded
that it be scheduled immediately. Id. at 12.
B. The Court’s Analysis
As a threshold matter, the court will dismiss defendants William Pollard,
Brian Foster, and Stadtmueller. It appears the plaintiff named these
individuals because they were the supervisors of the individuals the plaintiff
believes deprived him of his constitutional rights; however, 42 U.S.C. §1983
does not allow plaintiffs to sue supervisors for the errors of their subordinates.
See Pacelli v. deVito, 972 F.2d 871, 878 (7th Cir. 1992); West By and Through
Norris v. Waymire, 114 F.3d 646, 649 (7th Cir. 1997)(“[T]he doctrine of
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respondeat superior is not available to a plaintiff in a section 1983 suit.”).
Instead, a plaintiff may state a claim only against the particular individuals
who he believes deprived him of his rights. Because Pollard, Foster and
Stadtmueller were not personally involved in the alleged deprivations, the
plaintiff does not state claims against them.
With regard to the plaintiff’s Eighth Amendment claims against the other
defendants: "Prison officials violate the Eighth Amendment's proscription
against cruel and unusual punishment when their conduct demonstrates
'deliberate indifference to serious medical needs of prisoners.'" Gutierrez v.
Peters, 111 F.3d 1364, 1369 (7th Cir. 1997). This standard contains both an
objective element (i.e., that the medical needs be sufficiently serious) and a
subjective element (i.e., that the officials act with a sufficiently culpable state of
mind). Id.
At this point, the plaintiff has made sufficient allegations for the court to
allow him to proceed on his claim that defendants Manlove, Schrubbe, and
DeYoung were deliberately indifferent to his serious medical needs in violation
of the Eighth Amendment, based on their failures to enforce compliance with
his elevator pass while he was in segregation and their failures to update his
special needs slip prior to its expiration. The plaintiff also may proceed on a
deliberate indifference claim against DeYoung based on his allegations that she
failed to follow through on his requests for medication to address his
migraines. Finally, the plaintiff may proceed on a deliberate indifference claim
against Jane Doe #1 and Jane Doe #2 based on his allegations that they failed
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to order his medication and timely schedule his appointment with a specialist.3
The plaintiff may also proceed on state-law negligence claims against Manlove,
Schrubbe, DeYoung, Jane Doe #1, and Jane Doe #2.4
The plaintiff also seeks to pursue claims against these defendants under
the American with Disabilities Act (ADA) and the Rehabilitation Act (RA). To
establish a violation of Title II of the ADA, “the plaintiff must prove that he is a
‘qualified individual with a disability,’ that he was denied ‘the benefits of the
services, programs, or activities of a public entity’ or otherwise subjected to
discrimination by such an entity, and that the denial or discrimination was ‘by
reason of’ his disability.” Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir.
2015) (quoting Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir. 1996));
see also 42 U.S.C. §12132. Analysis under the ADA and the RA is essentially
the same, except that the RA includes an additional element requiring that the
entity denying access receive federal funds. Jaros v. Illinois Dept. of
Corrections, 684 F.3d 667, 671-72 (7th Cir. 2012). Importantly, “because the
ADA addresses its rules to employers, places of public accommodation, and

 The plaintiff alleges that Jane Doe #1 “forgot” to order his medication, which
sounds like negligence. Although negligence is not actionable under §1983, the
court will allow the plaintiff to proceed on this claim. Courts must construe pro
se plaintiff’s pleadings liberally, and it may be that the plaintiff
mischaracterized Jane Doe #1’s failure to order the medication without
understanding the significance of his word choice. Without discovery, it is
doubtful that the plaintiff can know at this stage whether her failure to order
the medication was intentional or just a mistake.  
4
 If the defendants answer, the court will enter a scheduling order setting
deadlines for discovery and the filing of dispositive motions. At that time, the
plaintiff may use discovery to identify the Jane Doe defendants. Once
identified, the plaintiff may file a motion to substitute the proper names for the
Doe placeholders.   
3

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other organizations, not to the employees or managers of these organizations” a
plaintiff may not proceed against defendants in their individual capacities—the
proper defendant is the organization5. Walker v. Snyder, 213 F.3d 344, 346
(7th Cir. 2000) (overruled on other grounds).
Although it is not clear, the court believes the plaintiff is alleging that
his access to WCI’s medical and mental health services was made more difficult
by the failure of the medical staff to require compliance with his elevator pass.
The plaintiff’s complaint demonstrates that WCI (as an organization) was able
and willing to accommodate the plaintiff’s disability by giving him an elevator
pass and letting him live on a lower tier; it was the individual defendants who
refused to implement or chose to deviate from that accommodation. As noted
above, however, individual defendants cannot be held liable under the ADA.
Because the plaintiff’s allegations do not support the plaintiff’s assertion that
WCI failed to accommodate his disability, the plaintiff may not proceed on this
claim.
The plaintiff also fails to state an equal protection claim, because he fails
to allege that he was treated differently from those who were similarly situated,
which is required to state such a claim. See Matthews v. Raemisch, 513
Fed.Appx. 605, 608 (7th Cir. 2013) (unpublished). Further, the plaintiff cannot
state a claim under the Health Insurance Portability and Accountability Act of
1996 (HIPPA), because HIPPA does not provide a private right of action.

 A plaintiff may pursue an ADA/RA claim against an entity such as this one by
suing an individual defendant, such as the warden, in his official capacity. In
that capacity, the individual defendant functions as a proxy for the entity.   
5

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Carpenter v. Phillips, 419 Fed.Appx. 658, 659 (7th Cir. 2011) (unpublished)
(citations omitted).
Finally, the court notes that, with some additional information, the
plaintiff may be able to state an Eighth Amendment conditions of confinement
claim based on his allegations that he was forced to sit, sleep, and eat in soiled
clothing and on soiled linen during a ten- to twelve-day period. As noted earlier
in this opinion, the plaintiff does not clarify how many times during that ten- to
twelve-day period he lived in soiled clothing, nor does he state whether or who
he asked for clean clothes or linen or if such requests were denied. Without
that information, the court will not allow him to proceed on a conditions-ofconfinement claim. If the plaintiff thinks he has adequate facts to state a
conditions-of-confinement claim, he may file an amended complaint. The court
reminds the plaintiff that an amended complaint will replace the original
complaint, so he cannot just refer to or supplement the original complaint, nor
may he incorporate the original complaint by reference; he must file a
completely new complaint that stands on its own. If the plaintiff chooses to file
an amended complaint, the court will screen it pursuant to 28 U.S.C. §1915A.
III.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2.
The court ORDERS that, pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, the clerk of court
will send copies of the plaintiff’s complaint and this order to the Wisconsin
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Department of Justice for service on defendants Manlove, Schrubbe, and
DeYoung.
The court also ORDERS that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, defendants
Manlove, Schrubbe, and DeYoung shall file a responsive pleading to the
complaint within sixty days of receiving electronic notice of this order.
The court further ORDERS that defendants Pollard, Foster, and
Stadtmueller are DISMISSED.
The court further ORDERS 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 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 court advises the plaintiff that if he fails to make a timely
submission, the court may dismiss this action for failure to prosecute. In
addition, the parties must notify the Clerk of Court of any change of address.

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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 6th day of September, 2016.

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