Jackson v. Murphy et al

Filing 40

ORDER signed by Judge Pamela Pepper on 3/12/2018. 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED; agency having custody of plaintiff to collect $156.24 balance of filing fee from plaintiff's prison trust account under 28 USC §1915(b)(2). 23 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. 27 Plaintiff's Motion for Permanent Injunction DENIED. Defendants to file responsive pleading within 60 days. Parties may not begin discovery until a scheduling order is entered setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Keith Jackson and Warden at Oshkosh Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEITH JACKSON,
Plaintiff,
v.

Case No. 17-cv-194-pp

DR. PATRICK MURPHY, GARY HAMBLIN,
EDWARD WALL, JUDY SMITH,
SARA KROPP, DANIELLE FOSTER,
MORGAN BAILEY, WILLIAM MCCREEDY,
WILLIAM GOLDEN, JAMIE BARKER,
DAVID BURNETT, LON BECHER,
HOLLY GUNDERSON, RN CARMODY,
THERESA MURPHY AND CARRIE SPRANGER,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 3), SCREENING
COMPLAINT UNDER 28 U.S.C. §1915A, DENYING WITHOUT PREJUDICE
PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 23), AND
DENYING PLAINTIFF’S MOTION FOR INJUNCTION (DKT. NO. 27)
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself,
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. 3. This order
resolves his motion and screens his complaint. This order also resolves the
plaintiff’s motion to appoint counsel, dkt. no. 23, and his motion for injunction,
dkt. no. 27.

1

I.

Motion for Leave to Proceed without Prepayment of the 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 that the plaintiff pay an initial partial
filing fee. 28 U.S.C. §1915(b).
On February 16, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $71.76. Dkt. No. 6. The plaintiff paid that fee on March 2,
2017. He has made additional payments totaling $122.00. The court will grant
the plaintiff’s motion, and will require the plaintiff to pay the remainder of the
filing fee ($156.24) over time as described at the end of this decision.
II.

Screening 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
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).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
2

allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim 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 defendant was acting under color of state law. BuchananMoore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer 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 gives a pro se plaintiff’s
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)).
A.

The Plaintiff’s Allegations

The plaintiff is incarcerated at the Oshkosh Correctional Institution
(Oshkosh). Dkt. No. 1 at 1. He suffers from “soft tissue disease or predisposal
towards recurrent cystic formation or multiple disease.” Id. at 11. This
condition has allegedly caused tumors and cysts to grow in the plaintiff’s left
testicle, and it also causes severe stomach pain. Id. at 12-13. He also has
severe pain in his nose. Id. at 13. The plaintiff has filed a 97-page complaint in
which he describes these medical conditions, treatment he has sought from the
defendants, and treatment he has received both at Oshkosh and at outside
hospitals. Id. at 9-91. The complaint allegations begin on February 27, 2012,
and end in August 2016. Id. at 12, 88, 90.

3

The plaintiff alleges that while Oshkosh medical staff saw him on a fairly
regular basis for his medical issues and sent him offsite to specialists, they did
not treat his severe pain, whether it was running out of his medications or the
required “athletic supporter” for his testicle, or declining to treat the pain. See
id., e.g., at 13, 20, 21, 28, 29, 31, 32, 35, 58, 59, 60, 69, 75 and 85. The
plaintiff also alleges that the medical staff didn’t follow specialists’ treatment
recommendations. See id., e.g., at 28, 43, 45, 46. The plaintiff’s symptoms got
progressively worse over time, and he allegedly notified the defendants of his
untreated symptoms and severe pain multiple times. See id., e.g., at 14, 15, 16,
17, 30, 31, 36, 38, 39, 42, 45, 51, 53, 54, 55, 60, 61, 64, 65, 66, 67, 76, 77,
78, 84, 86, 87, 88, 89, 90.
The plaintiff alleges that he finally had his nose surgery on May 6, 2015,
id. at 76, finally had testicle surgery on November 6, 2015, id. at 85, and finally
had surgery to remove the cysts and lumps in his throat on August 3, 2016, id.
at 88, 90. The delay and failure to treat the plaintiff’s symptoms from February
27, 2012, until August 3, 2016 allegedly caused the plaintiff significant
unnecessary pain and suffering.
The plaintiff claims that the defendants acted with deliberate indifference
to his serious medical needs in violation of the Eighth Amendment to the
United States Constitution. He lists specific allegations against each of the
defendants for actions they did, or did not, take to help him. For relief, he
seeks monetary damages.

4

B.

Discussion

“The Eighth Amendment safeguards the prisoner against a lack of
medical care that ‘may result in pain and suffering which no one suggests
would serve any penological purpose.’” Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015) (quoting Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816,
828 (7th Cir. 2009). To state an Eighth Amendment claim based on deficient
medical care, a plaintiff must allege an objectively serious medical condition
and an official’s deliberate indifference to that condition. Id. (citing Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011)). The court finds that the plaintiff
may proceed on an Eighth Amendment deliberate indifference to a serious
medical need claim.
III.

Motion to Appoint Counsel

The plaintiff has filed a motion to appoint counsel. Dkt. No. 23. He states
that he cannot afford an attorney and that his status as a prisoner will greatly
limit his ability to litigate the case. Id. The plaintiff also states that this case
presents complex issues which will require significant research, and that he
has limited access to the law library as well as limited legal knowledge. Id. He
states that he has made repeated efforts to find an attorney on his own. 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(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. Pruitt v. Mote, 503 F.3d
5

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.
In this case, the court finds that the plaintiff has made a reasonable
attempt to find an attorney on his own thereby satisfying the first requirement
for recruitment of counsel. The plaintiff’s filings show, however, that he is
intelligent, has a very good factual and legal understanding of his claim, and a
good knowledge of the law. The court finds that he can litigate on his own at
this stage of the case. That is, he can engage in pretrial discovery and motion
practice. The court will therefore deny without prejudice the plaintiff’s motion
to appoint counsel. If, in the future, the proceedings become too complicated
for the plaintiff to explain on his own, he may renew his request that the court
appoint him counsel.
IV.

Motion for Injunction
The plaintiff has filed a motion for an injunction “that Dr. Patrick

Murphy no longer be allowed to see [the plaintiff] as a medical patient as well
as no longer treat [the plaintiff] for any medical needs.” Dkt. No. 27. The
plaintiff states that Dr. Murphy is a poor medical provider and that he has
6

shown that he does not care when the plaintiff complains of pain. Id. He also
states that Dr. Murphy disagrees with him and accuses him of lying or
exaggerating his complaints of pain. Id. The plaintiff filed a declaration, dkt. no.
29, and a brief, dkt. no. 30, along with his motion.
In his declaration, the plaintiff describes a September 15, 2017,
appointment with Dr. Murphy. Id. At this appointment, the plaintiff allegedly
described to Dr. Murphy how he was leaking urine down his leg into his right
sock and shoe, and how he had sores on his penis from wearing the “capture.”
Id. at 1. Dr. Murphy disagreed that the plaintiff’s sock and shoe were wet from
urine, and stated that they were maybe damp from sweat. Id. The plaintiff also
told Dr. Murphy that his right testicle was growing a surrounding mass like the
left one had years earlier. Id. Dr. Murphy did not agree but he finally said that
the plaintiff could ask the UW doctor about his testicle. Id. at 1-2.
In his brief, the plaintiff describes seeing a specialist at the UW Hospital
on July 14, 2017, who prescribed Vesicare medicine for a weak bladder, a
follow-up visit, and continued physical therapy. Dkt. No. 30. The plaintiff
alleges that Dr. Murphy prescribed Trospium instead of Vesicare. Id. The
plaintiff allegedly returned to UW Hospital on September 22, 2017, and the
urologist sent a note to Dr. Murphy and Oshkosh staff to discontinue the
Vesicare and instead use Mirabegron. Id. The plaintiff alleges that he received a
memo from the “HSU” (Health Services Unit) prescribing Vesicare. Id. Based on
this, the plaintiff believes that Dr. Murphy is experimenting with medicine and

7

medical treatment, delaying treatment that may help him, and failing to follow
doctor-prescribed orders. Id.
The court construes the plaintiff’s motion as a motion for preliminary
injunction.
A party seeking a preliminary injunction must demonstrate that he is
reasonably likely to succeed on the merits, that he will suffer irreparable harm
if the court does not issue the injunction, and that he lacks an adequate
remedy at law. Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir.
2006). “If the moving party meets this threshold burden, the district court
weighs the factors against one another in a sliding scale analysis . . . which is
to say the district court must exercise its discretion to determine whether the
balance of harms weighs in favor of the moving party or whether the
nonmoving party or public interest will be harmed sufficiently that the
injunction should be denied.” Id.; see Joelner v. Vill. of Wash. Park, 378 F.3d
613, 619 (7th Cir. 2004).
As to the plaintiff’s likelihood of success on the merits of his claims: The
plaintiff disagrees with Dr. Murphy’s treatment decisions. Mere medical
malpractice or a disagreement with a doctor’s medical judgment is not
deliberate indifference. Edwards v. Snyder, 478 F.3d 827, 831 (7th Cir. 2007)
(citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)). At the same time, the fact
that a plaintiff received some medical care does not automatically defeat a
claim of deliberate indifference if a fact finder could infer the treatment was “so
blatantly inappropriate as to evidence intentional mistreatment likely to
8

seriously aggravate” a medical condition. Id. (citing Snipes v. DeTella, 95 F.3d
586, 592 (7th Cir. 1996)).
As to irreparable harm, the plaintiff himself admits that he has received
medical care. He simply does not agree with the care he is receiving. This does
not demonstrate irreparable harm.
The plaintiff has not shown a reasonable likelihood of success on the
merits of his claim that Dr. Murphy’s treatment constituted deliberate
indifference, and he has not shown that he is suffering irreparable harm.
V.

Conclusion

The court GRANTS the plaintiff's motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 3
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 23
The court DENIES the plaintiff’s motion for injunction. Dkt. No. 27
The court ORDERS that, under an informal service agreement between
the Wisconsin Department of Justice and this court, copies of plaintiff’s
complaint and this order are being electronically sent today to the Wisconsin
Department of Justice for service on the state defendants.
The court also ORDERS that, under 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.

9

The court further ORDERS that the agency having custody of the
prisoner shall collect from his institution trust account the $156.24 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 agency shall clearly identify the payments by the case name
and number assigned. If the plaintiff transfers to another institution—county,
state or federal—the transferring institution shall forward a copy of this order
along with plaintiff’s remaining balance to the receiving institution.
The court will send a copy of this order to Oshkosh Correctional
Institution.
The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS the plaintiff 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the case. Because each filing will be
electronically scanned and entered on the docket on receipt by the clerk, the
10

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 retain a personal copy of each document filed with the court.
The court advises the plaintiff that if he doesn’t file documents or take
other court-ordered actions by the deadlines the court sets, the court may
dismiss his case for failure to prosecute. 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 in Milwaukee, Wisconsin this 12th day of March, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

11