Sanchez v. Marshall et al

Filing 9

ORDER signed by Judge J.P. Stadtmueller on 11/8/2017. 3 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendant State of Wisconsin DISMISSED from action. Plaintiff PERMITTED to proceed on Eighth Amend ment deliberate indifference claim against Defendants CO Marshall, Nurse Garcia, and Richard Fuller. Copies of Plaintiff's Complaint and this Order to be electronically sent to Wisconsin DOJ for service on such defendants, who shall file a resp onsive pleading within 60 days. Parties are not to begin discovery until after scheduling order is entered. 2 Plaintiff's Motion to Appoint Counsel DENIED without prejudice. Agency having custody of Plaintiff to COLLECT the balance of the fil ing fee from his institution trust account in accordance with this Order. Action REFERRED back to Magistrate Judge David E. Jones for further proceedings. See Order. (cc: all counsel; via mail to Jose Sanchez and Warden at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSE SANCHEZ,

v.

Plaintiff,

Case No. 17-CV-350-DEJ-JPS

CO MARSHALL, NURSE GARCIA,
RICHARD FULLER, and STATE OF
WISCONSIN,

ORDER

Defendants.
Plaintiff Jose Sanchez, a Wisconsin state prisoner who is proceeding
pro se, filed a civil rights complaint alleging that the defendants violated
his Eighth Amendment rights at the Dodge Correctional Institution
(“DCI”). (Docket #1). This matter comes before the Court on Plaintiff’s
motion to proceed without prepayment of the filing fee. (Docket #3).
Plaintiff has been assessed and paid an initial partial filing fee of $10.92.
See 28 U.S.C. § 1915(b)(1).
This case is currently assigned to Magistrate Judge David E. Jones
and the parties have not had the opportunity to consent to magistrate
judge jurisdiction. Therefore, this matter was randomly referred to this
Court for the limited purpose of screening the complaint. The case will be
returned to Magistrate Jones after entry of this Order.
1.

Screening of the Plaintiff’s Complaint
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. Id. § 1915A(b).
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, and need only 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)). “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 factual content of the complaint must allow the Court to “draw
the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Allegations must “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Factual allegations, when accepted as
true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the Court
determines whether the plaintiff’s legal conclusions are supported by
factual allegations. Id. Legal conclusions not supported 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)).

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1.1

Factual Allegations

On May 26, 2016, Plaintiff got a “severe case of hives” and
experienced shortness of breath. (Docket #1 at 2). He asked CO Marshall if
he could go to the Health Services Unit (“HSU”) and she refused because
she “didn’t have time.” Id. A few hours later, Plaintiff again asked to go to
the HSU. Id. CO Marshall allowed him to go to the HSU but made him
walk there on his own. Id.
Plaintiff arrived at the HSU and Nurse Garcia gave him a Benadryl.
Id. She then made Plaintiff walk back to his cell on his own. Id. Later that
day, around 5:00 p.m., Plaintiff still felt ill and requested to go to the HSU
again. Id. CO Marshall told Plaintiff that the HSU “didn’t want to see
him.” Id. at 2-3.
For the next two days, May 27 and May 28, 2016, Plaintiff had to
walk to the HSU on his own several more times to get Benadryl. Id. at 3.
These journeys caused a lot of physical pain. Id. At some point between
May 26 and May 28, 2016, Plaintiff told Doctor Richard Fuller about his
symptoms and the doctor refused to physically examine, treat, or
diagnose Plaintiff. Id. at 5. On May 28, 2016, around 4:55 p.m., prison staff
took Plaintiff to the Intensive Care Unit (“ICU”) at the Waupun Memorial
Hospital Emergency Department. Id. at 3. Plaintiff had to be “intubated.”
Id. He was released from the ICU a few days later on June 1, 2016. Id.
Plaintiff seeks injunctive and monetary relief. Id. at 6.
1.2

Legal Analysis

To state a claim under 42 U.S.C. § 1983, 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
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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)). The State of Wisconsin is not
a “person” within the meaning of Section 1983. See Will v. Mich. Dept. of
State Police, 491 U.S. 58, 70 (1989). Therefore, the Court will dismiss the
State of Wisconsin as a defendant.
The Eighth Amendment protects an inmate’s right to humane
conditions of confinement including adequate food, clothing, shelter, and
medical care. Farmer v. Brennan, 511 U.S. 825, 825-26 (1994). A prison
official may be liable if he or she acts with “deliberate indifference” to a
substantial risk of serious harm to inmate health or safety. Id. at 834. A
prison official is deliberately indifferent when he or she knows of a
substantial risk of serious harm and either acts or fails to act in disregard
of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). Harm is
sufficiently “serious” 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.
Plaintiff may proceed with an Eighth Amendment deliberate
indifference claim against Marshall, Garcia, and Fuller. He states that he
notified Marshall, Garcia, and Fuller of a “severe case of hives” and
shortness of breath, and the Seventh Circuit has concluded that hives can
constitute an objectively serious medical condition. See Ammons v. Altergot,
968 F.2d 1218 (7th Cir. 1992). He further states that Marshall and Garcia
forced him to walk around with this condition for several days, which
caused a substantial amount of pain. Fuller refused to physically examine,
treat, and diagnose his condition. Several days after that, Plaintiff was
taken to the ICU and “intubated” until June 1, 2017. It’s unclear what
exactly happened to cause Plaintiff to need ICU care, but at this stage of
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the litigation, his allegation that he had hives and did not get sufficient
medical care therefor is sufficient to state an Eighth Amendment
deliberate indifference claim against Marshall, Garcia, and Fuller.
2.

Plaintiff’s Motion to Appoint Counsel
Plaintiff has also filed a motion for the appointment of counsel.

(Docket #2). He explains that he has a low I.Q. and may soon lose help
from the “jailhouse lawyer.” Id.
In a civil case, the Court has discretion to recruit a lawyer for
someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir.
2013). However, the litigant must first make reasonable efforts to hire
private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007). In this district, a plaintiff can satisfy this requirement by providing
the Court with: (1) the attorneys’ names, (2) the addresses, (3) the date and
way Plaintiff attempted to contact them, and (4) the attorneys’ responses.
Once Plaintiff makes reasonable attempts to hire counsel, the Court
then decides “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). The
Court looks not only at 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)).

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The Court is satisfied that Plaintiff made reasonable attempts to
secure counsel on his own. See Docket # 2-1. However, it will not appoint
counsel at this early stage of the case, as Plaintiff has not shown the Court
that the case exceeds his competence to present it. Further, while Plaintiff
complains that he may lose the benefit of his jailhouse lawyer in the
future, the operative question is whether the case is too complex for
Plaintiff to litigate on his own; it is not whether a jailhouse lawyer might
do a better job. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014).
Plaintiff has provided the Court with a complaint adequately
presenting the facts underlying his claims. All Plaintiff 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 with further instructions
on how to proceed with the case. Plaintiff can ask defendants to answer
his interrogatories, see Fed. R. Civ. P. 33, and ask them to produce
documents that he believes support his version of the relevant events, see
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.
At this time, the Court has no reason to believe that Plaintiff cannot
handle these tasks on his own.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed
without prepayment of the filing fee (Docket #3) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that the State of Wisconsin be and the
same is hereby DISMISSED from this action;

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IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the $339.08 balance
of the filing fee by collecting monthly payments from Plaintiff’s prison
trust account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’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. If Plaintiff is transferred 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;
IT IS FURTHER ORDERED that Plaintiff’s motion for the
appointment of counsel (Docket #2) 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 Defendants CO
Marshall, Nurse Garcia, and Richard Fuller. These defendants shall file a
responsive pleading to the complaint within sixty (60) days of receiving
electronic notice of this Order;
IT IS FURTHER ORDERED that the parties may not begin
discovery until after the Court enters a scheduling order setting deadlines
for discovery and dispositive motions;
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the institution where Plaintiff is confined;

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IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, Plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. The
Prisoner E-Filing Program is in effect at Columbia Correctional Institution,
Dodge Correctional Institution, Green Bay Correctional Institution,
Oshkosh Correctional Institution, Waupun Correctional Institution, and
Wisconsin Secure Program Facility. If Plaintiff is no longer incarcerated at
a Prisoner E-Filing institution, he will be required 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 matter.
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; and
IT IS FURTHER ORDERED that this case be referred back to the
United States Magistrate Judge assigned to this case for further
proceedings.

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Dated at Milwaukee, Wisconsin, this 8th day of November, 2017.
BY THE COURT:

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

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