Benson v. Bowens et al

Filing 12

SCREENING ORDER signed by Magistrate Judge William E Duffin on 1/23/17. IT IS THEREFORE ORDERED that Benson's motion for leave to proceed without prepayment of the filing fee (in forma pauperis) (ECF No. 2 ) is GRANTED. IT IS FURTHER ORDERED t hat the defendants respond to Benson's request for preliminary injunction (ECF No. 1 at 14) by February 17, 2017. IT IS FURTHER ORDERED that Benson's motion to appoint counsel (ECF No. 4 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDE RED that Benson's motion for an order allowing him to pay his $6.42 partial filing fee out of his release account (ECF No. 10 ) is DENIED AS MOOT. IT IS FURTHER ORDERED that defendants Jane Doe and John Doe are DISMISSED. IT IS ALSO ORDER ED 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 days of receiving electronic notice of this order. (cc: all counsel, Warden at Oshkosh Correction Inst., Jeffrey Delane Benson ) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEFFREY DELANE BENSON,
Plaintiff,
v.

Case No. 16-CV-1589

NANCY BOWENS, ET AL.,
Defendants.
SCREENING ORDER
Plaintiff Jeffrey Delane Benson is a Wisconsin state prisoner representing himself.
He filed a complaint alleging that the defendants acted with deliberate indifference to his
serious medical needs in violation of the Eighth Amendment to the United States
Constitution, and that some of the defendants were negligent in violation of Wisconsin state
law. This matter comes before the court on Benson’s petition to proceed without
prepayment of the filing fee (in forma pauperis).
Benson has been assessed and paid an initial partial filing fee of $6.42. On the same
day the court received Benson’s initial partial filing fee he filed a motion for a court order to
pay the initial partial filing fee from his release account. (ECF No. 10.) Because Benson
already submitted the initial partial filing fee, the court will deny this motion as moot.

Standard of Review for Screening Complaint
The court shall 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 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);
Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). 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) (citations
omitted).
To state a cognizable claim under the federal notice pleading system, Benson 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). Benson need not 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 mere “labels and conclusions” or a

2

“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’s
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, 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, Benson 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 Benson’s pro se allegations, “however

3

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)).
Complaint’s Allegations
Benson is incarcerated at the Oshkosh Correctional Institution (“Oshkosh”). He is
suing Nurse Practitioner Nancy Bowens, Health Services Supervisor Danielle Foster,
Institution Complaint Examiner Theresa Murphy, J. Zanon, Warden Judy P. Smith, Dr. P.
Murphy, Captain Tess, Health Care Unit Assistant J. Barker, Jane Doe, and John Doe.
Benson alleges that he has diabetes which causes him to have issues with his feet. On
June 13, 2014, pursuant to a referral from defendant Bowens, Benson had an appointment at
the University of Wisconsin Hospital and Clinics (“UW Hospital”) for an evaluation of his
feet. At the hospital Benson was diagnosed with “diabetes mellitus with neuropathy” and
“pes planus with foot pain.” (ECF No. 1 at 6.) Dr. Migon, the UW Hospital practitioner who
assessed Benson, recommended that he get “a pair of extra-depth diabetic type of shoes”
and a customized orthotic to decrease his foot pain within the arch and instep area. (Id.)
After his appointment Benson submitted several “medical slips” because he was in
pain and had not yet been seen by medical staff at Oshkosh for follow-up from his UW
Hospital appointment. On August 11, 2014, about eight weeks after the UW Hospital
appointment, defendant Bowens saw Benson at which time Benson informed her that the
medication he had been taking was not working. Benson also asked Bowens about the
shoes and orthotics that Dr. Migon had recommended. Bowens increased Benson’s pain
medication but did not do anything about the shoes and orthotics.

4

Benson submitted medical slips on August 20, 2014, October 3, 2014, November 2,
2014, December 3, 2014, and December 16, 2014. His medical slips included information that
he was in pain, one advised that he was finding it difficult to walk, and he questioned why
Oshkosh had not followed Dr. Migon’s recommendation for treatment for his feet. Two of
his medical slips were directed to Dr. Murphy.
On December 22, 2014, Benson was sent back to the UW Hospital, and from there he
was sent to Aljan in Madison, Wisconsin, where Dr. Burke made molds of his feet for
orthotics. (According to their website, The Aljan Company is an independent provider of
orthotic, prosthetic, and pedorthic services. See www.aljan.com, last visited January 23,
2017.) Even though Dr. Migon had recommended that Benson wear extra-depth shoes,
defendant Captain Tess was notified that Benson simply needed larger state-issued shoes to
accommodate the orthotics.
Benson submitted additional medical slips on December 26, 2014, December 29,
2014, and January 12, 2015, informing Dr. Murphy and Ms. Baker that, per Dr. Migon at
UW Hospital, he wasn’t supposed to use state-issued shoes because they caused problems
to his feet and aggravated his diabetes. On January 14, 2015, Benson received a memo from
Bowens stating, “extra-depth shoes should come from property.” (ECF No. 1 at. 8.)
In February 2015, Benson was sent back to Aljan to pick up his orthotics. In addition,
a photo was sent to Oshkosh to let staff there know what kind of shoes to get for Benson.
On March 3, 2015, Oshkosh’s special needs department determined that Benson did
not meet the criteria for “alternative footwear.” (Id.) Benson was directed to contact Captain

5

Tess if he needed a special shoe size. On March 5, 2015, Benson told Captain Tess that both
Dr. Migon at UW Hospital and Dr. Burke at Aljan told him that he had special needs for his
shoes, but Tess stated that “no one tells him what kind of shoes to give plaintiff[.]” (Id.)
On March 8, 2015, Benson submitted a medical slip begging Bowens for help
because he had no feeling in his feet and pain in his back, and nothing was being done
about it. On March 15, 2015, Benson received new medication but the medication did not
work, which he advised the Health Services Unit via a medical slip on March 17, 2015.
On May 6, 2015, Benson was issued another pair of state-issued black Velcro shoes,
which was the type of shoe that Dr. Burke at Aljan said he should not wear.
Benson submitted more medical slips on May 8, 2015, July 8, 2015, July 12, 2015,
August 14, 2015, September 9, 2015, and September 30, 2015, requesting the treatment that
Dr. Migon and Dr. Burke had recommended. He also stated that he had lost feeling in his
feet, that he was experiencing great pain in his back and feet, and that the medication he
took wasn’t working.
On November 16, 2015, Benson received boots that defendant Barker had ordered,
but the boots were too small for his orthotics despite Benson having previously told Barker
what size to order.
Benson submitted more medical slips on November 18, 2015, November 26, 2015,
December 29, 2015, January 6, 2016, and January 7, 2016, advising that he was in pain and
his medication was not working. In the January 7 medical slip Benson asked about getting
his orthotics cut to fit his boots, as “this is a (2) year problem now.” (Id. at 11.)

6

On January 19, 2016, an off-site service request and report to refit Benson’s orthotics
to his boots was submitted. Benson subsequently submitted more requests for help,
including a February 22, 2016, medical slip to Warden Smith, a letter to Wisconsin
Department of Corrections Secretary Edward Wall, and a letter to Wisconsin Senator Lena
Taylor.
On May 31, 2016, Benson was approved for alternative state footwear. Based on the
complaint’s allegations, it appears that as of September 2016 he had not received this
footwear.
Benson claims that all of the defendants violated his rights under the Eighth
Amendment by ignoring his requests for help to be seen by a doctor to prevent further
damage to his back and feet and by delaying getting Benson the treatment he needed.
Benson also claims that the refusal of defendants Bowens, Murphy, Foster, and Barker to
treat his feet and back condition for two years constituted negligence and medical
malpractice under Wisconsin state law.
For relief Benson seeks a preliminary injunction (addressed below), a permanent
injunction, and monetary damages.
Discussion
Benson may proceed on his claims under the Eighth Amendment against all
defendants based on his allegations that he has a serious medical need and that the
defendants failed to follow Dr. Migon’s and Dr. Burke’s recommendations for treatment of
his condition, resulting in ongoing pain. See Petties v. Carter, 836 F.3d 722, 729-30 (7th Cir.

7

2016) (refusal to follow instructions from specialist and persistence in an ineffective course
of treatment may indicate deliberate indifference). This claim includes Benson’s allegations
that the defendants delayed treating his condition. See id. at 730 (inexplicable delay in
treatment may support an inference of deliberate indifference). Benson may also proceed
against the defendants who processed the grievances he filed about the alleged lack of
medical care because the condition was ongoing and included complaints of untreated pain
as the result of not receiving treatment that medical professionals at the UW Hospital and
Aljan recommended. See Perez v. Fenoglio, 792 F.3d 768, 781-82 (7th Cir. 2015).
Benson also may proceed on his state law negligence/medical malpractice claim
against defendants Bowens, Murphy, Foster, and Barker. See Wade v. Castillo, 658 F. Supp.
2d 906, 919 (W.D. Wis. 2009). The court will exercise supplemental jurisdiction over the
state law claim. See 28 U.S.C. § 1367(a).
Benson claims that the defendants “conspired” to violate his rights. However, all of
the defendants work at Oshkosh and are state actors. Under the intracorporate-conspiracy
doctrine, a conspiracy cannot exist solely between members of the same entity. See Beese v.
Todd, 35 Fed. Appx. 241, 243 (7th Cir. 2002); Payton v. Rush-Presbyterian, 184 F.3d 623, 632
(7th Cir. 1999). Therefore, Benson may not proceed on a claim that the defendants conspired
to violate his rights.
Lastly, Benson names as defendants Jane Doe and John Doe, but he does not include
any allegations against either defendant. The court will therefore dismiss the Doe
defendants. If Benson identifies other defendants involved in the allegations giving rise to

8

his claim, he may file a motion to amend the complaint along with a proposed amended
complaint.
Request for Preliminary Injunction
In the complaint Benson seeks a preliminary injunction ordering the defendants to
follow the orders from the podiatrist (presumably, UW Hospital) and Aljan, to stop putting
his medical issue on hold, and to give him medications that will help him with the pain and
discomfort. As far as the court can tell, Benson has not received the treatment that
specialists recommended beginning in June 2014 and as a result he claims that he suffers
from severe pain. The court will direct the defendants to file a response to Benson’s request
for a preliminary injunction on or before February 17, 2017.
Motion to Appoint Counsel
Benson has filed a motion to appoint counsel. He states that his imprisonment will
unfairly limit his ability to litigate, the issues in this case are complex and will require
significant research, and that the prison law library is ill-equipped to provide him the
materials he needs to research and investigate his case. Benson states that once the court
certifies his claim he will attempt to find an attorney on his own and then will submit
documentation of his attempts.
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(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013). First,
however, the person has to make a reasonable effort to hire private counsel on their own.

9

Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable
attempt to hire counsel, the court then must decide “whether the difficulty of the case –
factually and legally – 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.
Benson has not yet satisfied the first requirement for recruitment of pro bono counsel,
that is, that he has made a reasonable effort to find an attorney on his own. He
understandably wants to wait until the court “certifies” his claim before trying to find an
attorney. Because Benson has not taken this initial step, the court will deny without
prejudice his motion for pro bono counsel. Benson may submit another motion once he has
contacted at least three attorneys in an attempt to find counsel on his own.
ORDER
IT IS THEREFORE ORDERED that Benson’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that the defendants respond to Benson’s request for
preliminary injunction (ECF No. 1 at 14) by February 17, 2017.
IT IS FURTHER ORDERED that Benson’s motion to appoint counsel (ECF No. 4) is
DENIED WITHOUT PREJUDICE.

10

IT IS FURTHER ORDERED that Benson’s motion for an order allowing him to pay
his $6.42 partial filing fee out of his release account (ECF No. 10) is DENIED AS MOOT.
IT IS FURTHER ORDERED that defendants Jane Doe and John Doe are
DISMISSED.
IT IS FURTHER ORDERED that, pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of Benson’s complaint
and this order are being electronically sent today to the Wisconsin Department of Justice for
service on the state defendants.
IT IS ALSO 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 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 Benson’s prison trust account the $343.58
balance of the filing fee by collecting monthly payments from Benson’s prison trust account
in an amount equal to 20% of the preceding month’s income credited to his trust account
and forwarding payments to the clerk of the 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 ALSO ORDERED that a copy of this order be sent to the Warden of Oshkosh
Correctional Institution, 1730 W. Snell Road, P.O. Box 3310, Oshkosh, Wisconsin, 549033310..

11

IT IS FURTHER ORDERED that Benson 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. It will
only delay the processing of the matter. As each filing will be electronically scanned and
entered on the docket upon receipt by the clerk, Benson need not mail copies to the
defendants. The defendant will be served electronically through the court’s electronic case
filing system. Benson should also retain a personal copy of each document filed with the
court.
Benson 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 23rd day of January, 2017.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

12