Oswald v. Pollard et al

Filing 27

ORDER signed by Judge Pamela Pepper on 11/23/2016 DENYING AS MOOT 15 Plaintiff's motion for leave to file an amended complaint; DENYING 16 Plaintiff's motion for the appointment of counsel; GRANTING 20 Plaintiff's motion for leave to file a second amended complaint; and GRANTING 26 Plaintiff's motion to screen amended complaints. The court ORDERS that Defendants Jane Doe #2 and Nurse Schroeder are DISMISSED. (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

JEFFREY MANLOVE, et al.,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING AS MOOT THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DKT. NO. 15),
GRANTING HIS MOTION FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT (DKT. NO. 20), DENYING HIS MOTION FOR
THE APPOINTMENT OF COUNSEL (DKT. NO. 16), AND GRANTING
DEFENDANTS’ MOTION TO SCREEN AMENDED COMPLAINTS (DKT. NO.
26)
______________________________________________________________________________
On September 6, 2016, the court screened the plaintiff’s complaint, and
allowed him to proceed on Eighth Amendment and negligence claims against
defendants Jeffrey Manlove, Belinda Schrubbe, Kristine DeYoung, and two
Jane Doe nurses. Dkt. No. 11. The court also explained to the plaintiff that,
with some additional information, he might be able to state an Eighth
Amendment conditions-of-confinement claim. Id. at 11. The court noted that if
the plaintiff believed he had adequate facts to state such a claim, he could file
an amended complaint. Id.
On September 12, 2016, the plaintiff filed a motion for leave to amend
his complaint, dkt. no. 15, and a motion for the appointment of counsel, dkt.
no. 16. The plaintiff explained that the only changes he made to his original

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complaint were to remove the proposed defendants that the court had
dismissed in its screening order and to add additional allegations in an effort to
state a conditions-of-confinement claim. Id. On October 14, 2016, the plaintiff
filed a motion seeking to further amend his complaint. Dkt. No. 20. His
proposed second amended complaint keeps the revisions made in his proposed
first amended complaint, adds a new defendant (Nurse Schroeder), and adds
allegations relating to the denial of special shoes. Id.
Federal Rule of Civil Procedure 15(a) requires courts to liberally grant
requests to amend pleadings. The court will deny the plaintiff’s first motion to
amend as moot (because the first proposed amended complaint would be
superseded by his proposed second amended complaint), it will grant the
plaintiff’s second motion, and screen the second amended complaint pursuant
to 28 U.S.C. §1915A. The court also denies the plaintiff’s motion for the
appointment of counsel, dkt. no. 16, and by screening the second amended
complaint, grants the defendants’ motion to screen, dkt. no. 26.
I.

Screening of the Plaintiff’s Second Amended Complaint
As the court already explained in its original screening order, the law

requires the court to screen complaints, including amended 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—all of it, or just part of it—if the plaintiff raises claims
that are legally “frivolous or malicious,” that fail to state a claim upon which

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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, 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,
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).
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.
20-1 at 4. The clinic recommended that the plaintiff be moved to a lower tier, a
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recommendation that Waupun Correctional Institution (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 5-6. These items included an extra
pillow (for his back), a washcloth and towel, adult diapers, and clean linen as
needed. Id. at 6. 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 6-7. He needs the extra towel, washcloth, and
linens in the event he soils himself during the night. Id.
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. On November 17, 2014, however, 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 6. The officers are located on the main floor, with the inmates being
housed 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.
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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 7. DeYoung said she would get an
updated slip, but she never returned. Id. The plaintiff alleges that from
December 5, 2014 through December 17, 2014, John Doe Officer refused to
give the plaintiff the items approved by the Special Needs Committee because
the slip had expired. Id. at 7-8.
Specifically, the plaintiff asserts that on Tuesday, December 9, 2014, he
awoke to a soiled adult diaper and a urine stain on his sheets. Id. at 8.
Because it was a shower day, John Doe Officer gave the plaintiff new clothes,
but he refused to give him new linens, explaining that new linens were given
only on Sundays. Id. On December 11, 2014, the plaintiff awoke to soiled
sheets, underwear (the plaintiff was no longer receiving adult diapers), and a
blanket. Id. The plaintiff states that he slept only in his underwear because he
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feared he would wet the bed and he did not want to get his clothes dirty. Id. He
explains that he rinsed his underwear in his sink. Id. On December 14, 2014,
John Doe Officer gave the plaintiff new linens because it was linen exchange
day, but he would not give him a new blanket. Id. Finally, on December 17,
2014, the plaintiff once again wet the bed and asked for new linen and an adult
diaper. Id. at 9. John Doe Officer stated that there were no adult diapers in the
medication cart, and the plaintiff was no longer entitled to adult diapers or
linen on demand. Id.
On December 17, 2014, the Special Needs Committee renewed his slip,
and at about 10:00 p.m. the third-shift officer gave the plaintiff clean linen and
apologized for the delay. Id.
During this period, the plaintiff requested on numerous occasions that
his special needs slip be renewed. Id. at 7-8. The only response he received was
that the Special Needs Committee met only once a month, so he would have to
wait. Id. at 7.
The plaintiff was released from segregation on December 29, 2014, at
which time his accommodations (lower tier, elevator pass) were reinstated. Id.
at 9.
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
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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. at 11. He learned later that defendant Jane Doe #1 forgot to
place the order. Id.
The plaintiff also alleges that, on October 28, 2015, a nurse practitioner
(not a defendant) ordered an appointment with the U.W.M. Spine Clinic for the
plaintiff’s 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.
Finally, the plaintiff alleges that in the beginning of 2016, the plaintiff
received splints and insoles from a foot care place in Fond du Lac. Id. at 13. He
states that, after a few weeks, he noticed that his shoes did not fit properly
with the insoles. Id. The plaintiff alleges that a nurse placed a note in his file
stating that he needed to go back to the foot place and be given new shoes. Id.
He states that he saw Nurse Schroeder multiple times, and that she stated that
“it” was cleared by Manlove. Id. (The court is not clear what “it” refers to.) The
plaintiff states that after about seven months, he asked about the special shoes
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but was told (it is unclear by whom) that “he was denied” (it is unclear by
whom) and no appointment was scheduled. Id.
B.

Analysis

"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 (that the medical needs be sufficiently serious) and a subjective
element (that the officials act with a sufficiently culpable state of mind). Id.
As the court explained in its original screening order, 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.1 The court also will allow the plaintiff to proceed on a deliberate
indifference claim against DeYoung, based on his allegations that she failed to
follow through on his requests for treatment of his migraines. Finally, the court

1

 In the section titled “Cause of Action,” the plaintiff alleges that William Pollard,

Brian Foster, and Stadtmueller also violated his Eighth Amendment rights.
Dkt. No. 20-1 at 14-15. These individuals are not identified in the caption of
the plaintiff’s second amended complaint as defendants. In addition, the
plaintiff explained in his motion for leave to file his first amended complaint
that he is no longer pursuing claims against these defendants. Dkt. No. 15. The
court concludes that the plaintiff simply forgot to remove these allegations from
his second amended complaint, and the court will not address them.    

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will allow the plaintiff to proceed on a deliberate indifference claim against Jane
Doe #1, based on his allegations that she failed to order his medication.2 The
court also will allow the plaintiff to proceed on medical malpractice claims
against Manlove, Schrubbe, and DeYoung, and on a negligence claim against
Jane Doe #1.
The court will not, however, allow the plaintiff to proceed on a deliberate
indifference claim against Jane Doe #2 based on his allegation that she failed
to schedule him for a medical appointment. This claim is not properly joined
with the claims against the other defendants. Under Federal Rule of Civil
Procedure 20, claims involving different defendants may be joined in a single
case only if the claims arise out of the same transaction, occurrence, or series
of transactions or occurrences, and if there is a question of law or fact common
to all defendants. The plaintiff’s allegation that Jane Doe #2 failed to schedule
him for an appointment for his back pain is an event that is separate from the
events surrounding the treatment he received for his special needs slip and
accommodations. Such a claim would not involve any question of law or fact in
common with the plaintiff’s deliberate indifference claims against Manlove,
Schrubbe, DeYoung, or Jane Doe #1. Accordingly, the court will dismiss the

 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 plaintiffs’ 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 whether her failure to order the medication
was intentional or just a mistake, and allowing him to proceed will allow him to
obtain that discovery.
2

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claims against Jane Doe #2. If the plaintiff wants to pursue a claim against
her, he must file a separate complaint and pay a separate filing fee.3
Nor has the plaintiff stated a claim against Nurse Schroeder or Manlove
based on his allegations that he did not receive proper treatment for his foot.
He alleges only that, after his foot issues were flagged for Schroeder, she
communicated to the plaintiff that Manlove had “cleared it.” Although the court
is unsure what “it” refers to, it is reasonable to infer from the plaintiff’s
allegations that Schroeder presented the plaintiff’s issue to Manlove and that
Manlove approved some course of treatment. Such conduct does not amount to
deliberate indifference. The plaintiff goes on to allege that nothing happened,
and that he was later told that his request had been denied, but he does not
indicate who ultimately denied the request. The court will not speculate on that
point.
To make out an Eighth Amendment claim based on prison conditions, an
inmate must show that he has suffered an objectively, sufficiently serious
injury, and that prison officials inflicted the injury with deliberate indifference.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). An objectively, sufficiently
serious injury is one that deprives the inmate “the minimal civilized measure of
life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Only
extreme deprivations will support an Eighth Amendment claim. Delaney v.
DeTella, 256 F.3d 679, 683 (7th Cir. 2001).

 The court erroneously allowed the plaintiff to proceed against Jane Doe #2 in
its original screening order, dkt. No. 11 at 8-9, and it now corrects that error. 
3

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Here, the plaintiff alleges that because of a medical condition, he often
wet his bed. He also alleges that John Doe Officer knew of the plaintiff’s
medical condition. Despite this, the plaintiff alleges that on two separate
occasions during the course of a week after his special needs slip had expired,
John Doe Officer refused to give the plaintiff new linen or clothes, requiring
him to wait until the scheduled days for the exchange of those items. As a
result, the plaintiff had to sleep in soiled underwear and on soiled linen for a
little less than a week.
Given the short duration, it is a close call whether these circumstances
constitute an “extreme deprivation” that deprived the plaintiff of “the minimal
civilized measure of life’s necessities.” At this stage, the court concludes that
the plaintiff may proceed on this claim against John Doe Officer. 4 See,
DeSpain v. Uphoff, 264 F.3d 965, 974-75 (10th Cir. 2001) (collecting cases
holding that courts are especially cautious about condoning conditions that
require inmates to live in close proximity to their own waste because such
conditions evoke both health concerns and general standards of dignity).
Finally, the court had addressed in its original screening order the
plaintiff’s failure to state claims under the American with Disabilities Act (ADA),
the Rehabilitation Act (RA), and the Equal Protection Clause. The plaintiff once
again includes those claims in his second amended complaint, but the court

 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 and John Doe defendants.
Once he identifies them, the plaintiff may file a motion to substitute the proper
names for the Doe placeholders.   
4

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suspects he does so only because he forgot to remove them when he revised his
original complaint. The court refers plaintiff to its original screening order for
an explanation of why it will not allow him to proceed on those claims. See Dkt.
No. 11, p. 9-11.
In summary, the plaintiff may proceed on an Eighth Amendment
deliberate-indifference claim against Manlove, Schrubbe, DeYoung, and Jane
Doe #1, and an Eighth Amendment conditions-of-confinement against John
Doe Officer. The plaintiff may also proceed on medical malpractice claims
against Manlove, Schrubbe, and DeYoung, and on a negligence claim against
Jane Doe #1. The court will dismiss Jane Doe #2 and Nurse Schroeder.
II.

Motion to Appoint Counsel
On September 12, 2016, the plaintiff filed a motion to appoint counsel.

Dkt. No. 16. The plaintiff explained that he cannot afford counsel and his
imprisonment greatly limits his ability to litigate this case. Id. He also states
that he has mental health problems and has been receiving help from another
inmate. Id. He explains that he just received approval to be transferred to a
minimum security facility, so he no longer will have access to that help. Id.
Finally, the plaintiff states that he has contacted at least four attorneys in an
effort to obtain counsel on his own, but that no one has agreed to help him. Id.
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(3)(1); Ray v. Wexford Health Sources, Inc., 706
F.3d 864, 866-67 (7th Cir. 2013). After a plaintiff demonstrates that he has
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made a reasonable attempt to hire counsel, the court must decide “whether the
difficulty of the case—legally and factually—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.
Almost every inmate who files a lawsuit asks the court to recruit a lawyer
to represent him. Most have no money, have no legal training, cannot afford a
lawyer, and have only limited access to the law library. Many have medical and
mental health issues. The court does not have the resources to pay lawyers to
represent everyone who asks, and there are not enough volunteer lawyers to
provide counsel for everyone who asks. This means that the court will recruit
counsel only in those cases where the issues have become so complicated that
the plaintiff cannot explain them himself.
The court record demonstrates that, at this time, the plaintiff is
competent to present the issues in his case himself. He has laid out, clearly
and succinctly and in legible form, the facts of the case. The court understands
his claim. The court acknowledges that the plaintiff has received help up to this
point, but it is unclear when, if ever, that help will stop, or whether the plaintiff
even needs help to continue handling his case on his own.
If the defendants file an answer to the plaintiff’s second amended
complaint, the court will enter a scheduling order. At that point, the plaintiff
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may serve the defendants with interrogatories (written questions) and/or
document requests to obtain information and documents that support his
version of the events. See Fed. R. Civ. Pro. 33 and 34. Nothing indicates that
the plaintiff is unable to handle these tasks on his own. There may come a
point in the case where the plaintiff becomes unable to handle the legal issues
in the case, but that point has not arrived. If and when that point comes, he
can renew his request that the court recruit counsel to represent him.
III.

Defendants’ Motion to Screen Amended Complaints

By virtue of this order, the court grants the defendants’ motion to screen
the plaintiff’s amended complaints. Dkt. No. 26.
IV.

Conclusion

The court DENIES AS MOOT the plaintiff’s motion for leave to file an
amended complaint. Dkt. No. 15. The court GRANTS the plaintiff’s motion for
leave to file a second amended complaint. Dkt. No. 20. The court directs the
Clerk of Court to docket the plaintiff’s second amended complaint as the
operative complaint. Dkt. No. 20-1. The second amended complaint is the
operative complaint in this lawsuit.
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel (Dkt. No. 16).
The court GRANTS the defendants’ motion to screen the amended
complaints. Dkt. No. 26.
The court further ORDERS that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court, the
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clerk of court will send copies of the plaintiff’s second amended complaint and
this order to the Wisconsin 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
amended complaint within sixty days of receiving electronic notice of this order.
The court ORDERS that defendants Jane Doe #2 and Nurse Schroeder
are DISMISSED.
Dated in Milwaukee, Wisconsin this 23rd day of November, 2016.

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