Scott v. Rodriquez et al

Filing 18

ORDER signed by Judge J.P. Stadtmueller on 6/19/2017: DENYING as moot 14 Plaintiff's Second Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING without prejudice 16 Plaintiff's Motion to Appoint Counsel; and GRAN TING 17 Plaintiff's Motion to Amend/Correct His Complaint. Plaintiff PERMITTED to proceed on Eighth Amendment individual capacity claim against Defendant Meghan Rodriquez and an official capacity claim against Defendant William J. Pollard. C opies of the Amended Complaint and this Order to be electronically sent to the Wisconsin DOJ for service on such Defendants, who shall file a responsive pleading within 60 days. See Order for further details. (cc: all counsel, via mail to Demetric Scott at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DEMETRIC SCOTT,

v.

Plaintiff,

Case No. 17-CV-140-JPS

WILLIAM J. POLLARD and
MEGHAN RODRIQUEZ,

ORDER

Defendants.
This matter comes before the court on plaintiff Demetric Scott’s
(“Scott”) second motion for leave to proceed without prepayment of the
filing fee (Docket #14), motion to appoint counsel, (Docket #16), motion to
amend/correct the complaint, (Docket #17), and for screening of the
amended complaint, (Docket #13). The court granted Scott’s first motion for
leave to proceed without prepayment of the filing fee on March 24, 2017.
(Docket #10). Therefore, it will deny as moot Scott’s second motion for leave
to proceed without prepayment of the filing fee.
1.

Plaintiff’s Motion to Amend/Correct the Complaint
Scott asks to amend/correct his complaint to include Meghan

Rodriquez as a defendant. Scott listed Rodriquez as a defendant in his
original complaint, (Docket #1), but omitted her from the caption in the
Amended Complaint. The body of the Amended Complaint, (Docket #13),
includes facts and allegations against Rodriquez and states a claim against
her (as discussed below). Therefore, the court will grant plaintiff’s motion
to amend/correct the complaint.

2.

Screening of the Amended Complaint
The Prison Litigation Reform Act requires courts to screen

complaints brought by inmates 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,” fail to state a claim
upon which relief may be granted, or seek monetary relief from a defendant
who is immune from such relief. 28 U.S.C. § 1915A(b).
To state a 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). The complaint need
not plead specific facts but must provide “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)).

A

complaint that offers mere “labels and conclusions” or a “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).
The complaint must contain sufficient factual matter that, when
accepted as true, “state a claim to relief 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).
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First,
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the court determines whether the plaintiff’s legal conclusions are supported
by factual allegations. Id. Legal conclusions not support by facts “are not
entitled to the assumption of truth.” Id. Second, the court determines
whether the well-pleaded factual allegations “plausibly give rise to an
entitlement to relief.” Id. The court gives 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)).
2.1

Factual Allegations

Scott is an inmate at the Waupun Correctional Institution
(“Waupun”). (Docket #13). Meghan Rodriquez (“Rodriquez”) is a
Correctional Officer at Waupun and William Pollard (“Pollard”) is Warden
at Waupun. (Docket #13 at 2-3).
On March 20, 2014, Rodriquez distributed bedtime medication at
around 8:50 p.m. Id. at 3. Rodriquez tried to give Scott five pills. Id. Scott
explained that he only was to receive three pills at bedtime (Mirtazapine,
Divalproex, and Risperidole) and asked Rodriquez to check the dosage on
his medication chart. Id. Scott also told her that his doctor would not change
his medication without examining him, and he had received incorrect
medication once before, in August 2013, which had caused him to vomit
within 30 minutes. Id. Rodriquez responded “how and the fuck should I
know any of this, I just work here.” Id. Scott took all five pills that Rodriquez
gave him, and within 45 minutes, he was vomiting all over his bed, floor,
and toilet. Id. Around 10:20 p.m., “3rd shift” saw that Scott was sick and
immediately called medical personnel. Id.
The next day, on March 21, 2014, Scott went to the Health Services
Unit for an appointment with Nurse Larson (not a defendant). Id. After
Scott told Larson what happened, Larson suspected that Rodriquez had
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given him the wrong inmate’s medication. Id. Larson made this statement
in the presence of Correctional Officer Gorman (also not a defendant). Id.
Scott explains that he has found numerous errors in his medical
records in the past. Id. Examples include failure to note the dosage he
received on a particular day and failure to note whether or not he actually
took his medication that day. Id. In some cases, the entries simply stated
“R,” which could mean medication “received” or medication “refused.” Id.
For relief Scott seeks “compensatory damages,” “punitive
damages,” and “monetary damages.” Id. at 5.
2.2

Analysis of Factual Allegations

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. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Vill. 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 Eighth Amendment prohibits prison officials from showing
“deliberate indifference” to a substantial risk of serious harm to inmate
health or safety. Farmer v. Brennan, 511 U.S. 825, 829, 834 (1994). Jail officials
act with deliberate indifference when they know of a substantial risk of
serious harm and either act or fail to act in disregard of that risk. Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011). Inmates have a “serious harm” if the
inmate’s condition “has been diagnosed by a physician as mandating
treatment or . . . is so obvious that even a lay person would perceive the
need for a doctor’s attention.” Id.

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For the reasons discussed below, Scott may proceed with an
individual capacity claim against Rodriquez and an official capacity claim
against Pollard.
2.2.1

Individual Capacity Claims

Individual liability under § 1983 is typically based on a defendant’s
personal involvement in the constitutional violation. Gentry v. Duckworth,
65 F.3d 555, 561 (7th Cir. 1995). “An official satisfies the personal
responsibility requirement of section 1983 . . . if the conduct causing the
constitutional deprivation occurs at [her] direction or with [her] knowledge
and consent.” Id. (quoting Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982).
She “must know about the conduct and facilitate it, approve it, condone it,
or turn a blind eye.” Id. (quoting Jones v. City of Chicago, 856 F.2d 985, 992
(7th Cir. 1988)).
Scott may proceed with an Eighth Amendment claim against
Rodriquez. He told Rodriquez that she may have given him the wrong
medication dosage. It is unclear whether Rodriquez checked his medical
chart, but she gave him five pills. Scott took the medication and within 45
minutes became very ill. He later learned that Rodriquez likely gave him
someone else’s medication. Thus, Scott may proceed with an Eighth
Amendment individual capacity claim against Rodriquez.
Scott does not allege facts showing Pollard’s direct involvement in
the incident. Scott neither notified Pollard about the problems with his
medication nor is Pollard alleged to have acted or failed to act. Thus, Scott
may not proceed with an individual capacity claim against Pollard.
2.2.2

Official Capacity Claims

A suit against a state official in his or her official capacity is a suit
against the state itself. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
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(1989). The Eleventh Amendment bars suits for monetary damages against
states. Id. at 66. Consequently, official capacity claims are limited to
injunctive relief. See id. at 71 n.10.
To procced with an official capacity claim, Scott must identify a
governmental entity’s “policy or custom” that violated his constitutional
rights. Hafer v. Melo, 502 U.S. 21, 25 (1991). The governmental entity itself
must be the “moving force” behind the alleged constitutional deprivation.
See Kentucky v. Graham, 473 U.S. 159, 166 (1985). Scott must set forth a
“specific pattern of series or incidents” which demonstrates an
unconstitutional policy or custom, and he must allege more than a “single
deprivation alone.” See Hossman v. Blunk, 784 F.2d 793, 796-97 (7th Cir.
1986).
Scott’s amended complaint only specifically asks for monetary
damages. See (Docket #13 at 5). However, he also states that correctional
officers are “untrained and inadequate” to distribute prescription
medication, and only a trained medical professional, as defined by Wis.
Stat. § 441.10, should do this task. Id. at 3. Thus, he also seeks some form of
injunctive relief regarding Waupun’s prison policy allowing correctional
officers to distribute prescription medication.
Scott takes prescription medication several times a day and has
received the wrong medication from correctional staff on at least two
occasions. Both times he became very ill. Therefore, Scott may proceed with
an Eighth Amendment official capacity claim against Pollard. See Goodvine
v. Meisner, No. 14-CV-278-WMC, 2016 WL 1274622, at *4 (W.D. Wis. Mar.
31, 2016); see also Steed v. Doe, No. 14-CV-747-JDP, 2016 WL 1179230, at *4
(W.D. Wis. Mar. 23, 2016).

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Scott has no basis for asserting an official capacity claim against
Rodriquez. He fails to allege facts showing that she is or was responsible
for creating or implementing prison policy regarding the distribution of
prescription medication by correctional staff. Thus, he may not proceed
with an official capacity claim against Rodriquez.
3.

Plaintiff’s Motion to Appoint Counsel
Scott asks for the appointment of counsel, and he attaches his current

education level test scores in reading, language, and math to show he needs
legal assistance. (Docket #16). He states that “[t]o force [him] to represent
himself would be the equivalent of a 5-year old child performing a heart
transplant.” Id.
In a civil case the court has discretion to recruit counsel for
individuals unable to 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). However, the plaintiff must first make reasonable
efforts to hire counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). In this district’s “Answers to Prisoner Litigants’ Common
Questions,” it states, “[b]efore the court will consider trying to find an
attorney to volunteer to represent a litigant in a civil action, the litigant must
attempt to find an attorney on his or her own.” That generally means that a
plaintiff must contact at least three attorneys and provide the court with (1)
the attorneys’ names, (2) their addresses, (3) the date and the way the
plaintiff attempted to contact them, and (4) the attorney’s responses.
After the plaintiff demonstrates that he has made a reasonable
attempt to hire counsel, the court will then 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
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Pruitt, 503 F.3d at 655). The court looks not only at a 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. “[D]eciding whether to recruit counsel ‘is a difficult decision:
Almost everyone would benefit from having a lawyer, but there are too
many indigent litigants and too few lawyers willing and able to volunteer
for these cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014)
(quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)).
Most incarcerated litigants do not have law degrees and have an
education level below that of a trained lawyer. The court cannot appoint
counsel for every incarcerated person who asks. Therefore, it must ensure
that each incarcerated litigant does what is required of him before the court
considers recruiting counsel for him. Scott states that he has made
“reasonable efforts to find a lawyer on his own” but he has not explained
what he has done to satisfy this requirement. (Docket #16.)
Further, the court has no reason to believe that Scott’s limited
education will prevent him from prosecuting his case at this stage of the
litigation. Scott’s filings thus far have been clear and coherent. When the
court asked him to file an amended complaint, he was able to do so, and he
cured the deficiencies that prevented his original complaint from
proceeding past screening. He understood the court’s order and cited
relevant facts and caselaw to state a claim upon which relief could be
granted.
It may be that Scott does not know how to proceed at this point in
the litigation. All he must do right now is wait for defendants to file an
answer. If and when defendants file an answer, the court will issue a
scheduling order setting deadlines for discovery and dispositive motions.
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The scheduling order will include further instructions on how to procced
with this litigation. Scott can ask defendants to answer his interrogatories,
Fed. R. Civ. P. 33, and he may ask them to produce documents that he
believes support his version of the events, Fed. R. Civ. P. 34. He will also be
able to present his version of the events through an affidavit or unsworn
declaration, under 28 U.S.C. § 1746, in response to any motion for summary
judgment that defendants might file. Therefore, the court will deny
plaintiff’s motion to appoint counsel without prejudice.
Accordingly,
IT IS ORDERED that the plaintiff’s second motion for leave to
proceed without prepayment of the filing fee (Docket #14) be and the same
is hereby DENIED as moot;
IT IS FURTHER ORDERED that the plaintiff’s motion to
amend/correct the complaint (Docket #17) be and the same is hereby
GRANTED. The Clerk of Court will amend the caption to reflect Meghan
Rodriquez as a current defendant;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court,
copies of plaintiff’s amended complaint and this order are being
electronically sent today to the Wisconsin Department of Justice for service
on Meghan Rodriquez and William Pollard. Rodriquez and Pollard shall
file a responsive pleading to the amended complaint within sixty (60) days
of receiving electronic notice of this order; and
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint
counsel (Docket #16) be and the same is hereby DENIED without prejudice.

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Dated at Milwaukee, Wisconsin, this 19th day of June, 2017.
BY THE COURT:

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

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