Menting v. Humphreys et al

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 12/19/2016 GRANTING 5 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee. Defendants William Kelley, William McCreedy, Cindy O'Donnell, Hannula and Robert Humphreys are DISMISSED from this action. 6 Plaintiff's motion for appointment of counsel DENIED without prejudice. Defendant to file responsive pleading to complaint within 60 days. Wisconsin DOC to collect balance of filing fee from plaintiff's trust account per 28 U.S.C. § 1915(b)(2). (cc: all counsel, via mail to William J. Menting and Warden at Stanley Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WILLIAM J. MENTING,
Plaintiff,
v.

Case No. 16-CV-1540-JPS

WARDEN ROBERT HUMPHREYS,
WILLIAM MCCREEDY, DR.
WILLIAM KELLEY, SGT. SCHMIDT,
CINDY O’DONNELL, and DR.
HANNULA,

ORDER

Defendants.

The plaintiff, who is incarcerated at Stanley Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). This matter comes before the Court on the
plaintiff's motion to proceed in forma pauperis. (Docket #5). The plaintiff has
been assessed and paid an initial partial filing fee of $33.33. 28 U.S.C. §
1915(b)(4).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). The Court 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).

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); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774
(7th Cir. 2002). 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; Gladney, 302 F.3d at
774. “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 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658
F.3d 702, 705 (7th Cir. 2011).
To state a cognizable claim under the federal notice pleading system,
the 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 the 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)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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.

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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);
Christopher, 384 F.3d at 881.
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, the Court
must, second, “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: 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). The Court is obliged to give the 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)).
The plaintiff alleges that in 2010, as the result of a traffic accident, his
leg was amputated. (Docket #1 at 4). Throughout the relevant period, the
stump was apparently painful and bled regularly. Id. at 7-8. Though his
allegations are not clear, the plaintiff’s primary complaint is that prison
officials failed to appropriately address this handicap. As best the Court can
discern, the plaintiff was moved to Kettle Moraine Correctional Institution

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(“KMCI”) in mid-2013 or early 2014. Id. at 5-6. While at KMCI, the plaintiff
was allegedly prohibited from using a wheelchair but was instead required
to use crutches. Id. The plaintiff showed Sgt. Schmidt (“Schmidt”) what he
claims are orders from his physician that he must use a wheelchair. Id. at 6.
Schmidt apparently ignored that document. Id. Schmidt also seems to have
refused to follow medical orders to deliver the plaintiff’s meals to him in his
cell. (Docket #1-6).
The plaintiff further alleges that the other defendants ignored his
“calls for help,” which appear to be prison grievance filings and requests for
medical service. (Docket #1 at 7). Additionally, KMCI warden Robert
Humphreys (“Humphreys”) was allegedly “told repeatedly about the actions
of his subordinates[,] [a]nd he repeatedly refused to act[.]” Id. at 1. The
plaintiff accuses William McCreedy (“McCreedy”), the Health Services Unit
manager at KMCI, of acting in concert with the other defendants to deny him
a wheelchair. Id. at 2. Dr. William Kelley (“Kelley”) also received complaints
from the plaintiff and did nothing. Id. It is not clear whether Kelley is a state
employee, an independent contractor employed by the state, or a private
physician.
Cindy O’Donnell (“O’Donnell”), deputy secretary of the Department
of Corrections, ruled on at least one of the plaintiff’s grievance appeals.
(Docket #1-9). The plaintiff alleges that she failed to intervene to stop the
other defendants’ constitutional violations and did not adequately
investigate his complaints. (Docket #1 at 2-3). Finally, Dr. Hannula
(“Hannula”), a physician at the plaintiff’s current institution, apparently
denied him orthopedic shoes. Id. at 3.

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As currently presented, the plaintiff’s complaint states only one viable
claim for relief. His first cause of action is asserted against all of the
defendants for deliberate indifference to his serious medical needs. Id. at 10.
The Gayton case outlines the elements of the claim:
[T]he plaintiff must show that: (1) [he] had an
objectively serious medical condition; (2) the defendants knew
of the condition and were deliberately indifferent to treating
[him]; and (3) this indifference caused [him] some injury. An
objectively serious medical condition is one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need
for a doctor’s attention. A medical condition need not be
life-threatening to be serious; rather, it could be a condition
that would result in further significant injury or unnecessary
and wanton infliction of pain if not treated.
With regard to the deliberate indifference prong, the
plaintiff must show that the official acted with the requisite
culpable state of mind. This inquiry has two components. The
official must have subjective knowledge of the risk to the
inmate's health, and the official also must disregard that risk.
Evidence that the official acted negligently is insufficient to
prove deliberate indifference. Rather, “deliberate indifference”
is simply a synonym for intentional or reckless conduct, and
that “reckless” describes conduct so dangerous that the
deliberate nature of the defendant’s actions can be inferred.
Simply put, an official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference. Even if a
defendant recognizes the substantial risk, he is free from
liability if he responded reasonably to the risk, even if the harm
ultimately was not averted. Whether a medical condition is
“serious” and whether a defendant was “deliberately
indifferent” to it are fact questions, to be resolved by a jury if
a plaintiff provides enough evidence to survive summary
judgment.

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Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010) (citations and quotations
omitted).
As to Schmidt, the plaintiff told him directly about his need for a
wheelchair, and he allegedly did nothing. It appears that the need for a
wheelchair would satisfy the “serious medical need” element. Further,
although correctional officers are entitled to defer to medical professionals’
judgment, they cannot completely ignore an inmate’s needs or the medical
professionals’ instructions. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir. 2012).
Schmidt ignored the plaintiff entirely and/or refused to comply with the
doctor’s orders regarding his care. Thus, at the screening stage, the plaintiff
has stated a claim for deliberate indifference against Schmidt.
As to the other defendants, the plaintiff does not fare as well. His
allegations, even viewed liberally, do not even suggest that the other
defendants exhibited the criminal recklessness required to bear Eighth
Amendment liability. The plaintiff makes only conclusory statements as to
Humphrey’s knowledge of his disability without factual allegations to
support them. Humphrey cannot be liable simply because he knew that the
plaintiff was being denied a wheelchair; he must have personally
participated in the decisionmaking for the plaintiff’s treatment. Williams v.
Nickleson, 84 Fed. App’x 656, 658 (7th Cir. 2003). This is not alleged in the
complaint. The plaintiff makes an additional claim of retaliation against
Humphreys, but it is similarly comprised only of a legal conclusion without
any reference to fact. (Docket #1 at 11). That claim must also be dismissed.
The allegations against McCreedy and Kelley (assuming Kelley is in
fact a “state actor” as required for constitutional liability) are also conclusory.
Further, the plaintiff’s own exhibit shows that not only were McCreedy and
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Kelley not indifferent to his medical needs, KMCI’s medical staff offered
other options to care for his leg, but the plaintiff refused them all. (Docket #110). The plaintiff’s mere disagreement with a course of treatment, however,
does not show that anyone was deliberately indifferent to his needs. Snipes
v. DeTella, 95 F.3d 586, 591 (7th Cir. 1996).
Finally, like Humphreys, O’Donnell had no connection to the
plaintiff’s treatment. Complaint examiners within a prison are allowed to
defer to medical providers so long as they do not ignore an inmate’s
complaint. Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005). This certainly
applies with even more force to O’Donnell, whose ability to investigate from
the central Department of Corrections offices is more limited than on-site
complaint examiners. Again, the plaintiff’s conclusory allegations as to
O’Donnell’s alleged indifference do not state a viable claim. It appears that
the plaintiff is simply displeased that she ruled against his appeal, but that
is no violation of the Eighth Amendment.
The plaintiff asserts another claim against O’Donnell. He states that
she imposed cruel and unusual punishment upon him by failing to intervene
when he was denied a wheelchair. The Seventh Circuit has noted that “[t]he
Governor, and for that matter the Superintendent of Prisons and the Warden
of each prison, is entitled to delegate to the prison’s medical staff the
provision of good medical care. That is equally true for an inmate complaint
examiner.” Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). As an
administrative, non-medical employee, O’Donnell (among other things)
merely reviewed inmate complaints. Other than the plaintiff’s statements of
legal conclusions, there is nothing to suggest “that [O’Donnell] shirked [her]

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duty in any way or failed to appropriately handle the claims.” Greeno, 414
F.3d at 657.
The Court saves Hannula for last, as she should not even be named as
part of the present suit. As instructed by the Seventh Circuit Court of
Appeals, under the controlling principle of Rule 18(a), Federal Rules of Civil
Procedure, “[u]nrelated claims against different defendants belong in
different suits” so as to prevent prisoners from dodging the fee payment or
three strikes provisions in the Prison Litigation Reform Act. George v. Smith,
507 F.3d 605, 607 (7th Cir. 2007). Specifically, Rule 18(a) provides that a
“party asserting a claim, counterclaim, crossclaim, or third-party claim may
join, as independent or alternate claims, as many claims as it has against an
opposing party.” Under this rule, “multiple claims against a single party are
fine, but Claim A against Defendant 1 should not be joined with unrelated
Claim B against Defendant 2.” George, 507 F.3d at 607.
Moreover, the court in George reminded district courts that Rule 20,
Federal Rules of Civil Procedure, applies as much to prisoner cases as it does
to any other case. 507 F.3d at 607. Under Rule 20, joinder of multiple
defendants into one action is proper only if “any right to relief is asserted
against them jointly, severally, or in the alternative with respect to or arising
out of the same transaction, occurrence, or series of transactions or
occurrences; and any question of law or fact common to all defendants will
arise in the action.”
Hannula’s liability, if any, is completely separate from the other
defendants and arises from a wholly different set of occurrences. She is the
only defendant from Stanley Correctional Institution, and the plaintiff’s

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complaint against her is for failing to provide orthopedic shoes.1 Though this
does relate generally to the plaintiff’s handicap, the Court sees no connection
(and the plaintiff makes none) between Hannula’s actions and those of the
KMCI defendants regarding wheelchair use. The mere fact that the plaintiff
wishes to assert a deliberate indifference claim against Hannula as well as the
other defendants does not render joining the claims proper.
In light of the foregoing, the Court finds that the plaintiff may proceed
on the following claim: Schmidt’s deliberate indifference to the plaintiff’s
serious medical needs, in violation of the Eighth Amendment, during the
plaintiff’s incarceration at KMCI. All of the other claims and defendants must
be dismissed.
Finally, the Court addresses the plaintiff’s motion for appointment of
counsel. (Docket #6). Under 28 U.S.C. § 1915(e)(1), the “court may request an
attorney to represent any person unable to afford counsel.” The Court should
seek counsel to represent the plaintiff if the plaintiff: (1) has made reasonable
attempts to secure counsel; and (2) “‘the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a layperson to
coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013)
(quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc)).
The Court will deny the plaintiff’s motion under both prongs of the
Pruitt test. As to the first prong, the plaintiff offers no evidence that he has
made any attempts to secure counsel, much less reasonable attempts. See
(Docket #6). As to the second prong, the plaintiff cites his imprisonment, lack

1

At one point, the plaintiff alleges that Hannula participated in denying him a wheelchair
at KMCI, but as she does not work there, and the statement listed all of the other defendants as
well, it appears this was simply a mistake. (Docket #1 at 12).
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of legal knowledge, and lack of funds as reasons for appointing counsel. Id.
These reasons are insufficient standing alone; they are common to every
prisoner-filed civil case. Though he also cites an alleged brain injury, the
Court cannot conclude at this juncture that the injury renders this case
beyond the plaintiff’s capacity to present it. His complaint and attached
exhibits, though not well organized, show that he has a more than adequate
understanding of the nature of his claims and the potential proof needed to
succeed on them. As such, the Court concludes that recruitment of counsel
is not necessary at this time. The plaintiff’s motion to appoint counsel will be
denied without prejudice.
IT IS ORDERED that the plaintiff's motion for leave to proceed in
forma pauperis (Docket #5) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that defendants Warden Robert
Humphreys, William McCreedy, Dr. William Kelley, Cindy O’Donnell, and
Dr. Hannula be and the same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that the plaintiff’s motion for
appointment of counsel (Docket #6) be and the same is hereby DENIED
without prejudice;
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 will be electronically sent to the
Wisconsin Department of Justice for service on the state defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court, the
defendants shall file a responsive pleading to the complaint within sixty (60)
days of receiving electronic notice of this order;
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IT IS FURTHER ORDERED that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff's
prison trust account the balance of the filing fee by collecting monthly
payments from the 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
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 FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined;
IT IS FURTHER ORDERED that the plaintiff shall 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS; doing so will only delay the processing of this matter. As each
filing will be electronically scanned and entered on the docket upon receipt
by the Clerk of Court, 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.

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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 19th day of December, 2016.
BY THE COURT:

____________________________________
J.P. Stadtmueller
U.S. District Judge

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