Balsewicz v. Bartow et al

Filing 22

SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/29/2017. 19 Plaintiff's Amended Complaint to be the OPERATIVE complaint in this matter. 20 Defendants' Motion for Court to Screen the Amended Complaint GRANTED. Plaintiff PERMI TTED to proceed on claims of: deliberate indifference to Plaintiff's serious medical need, in violation of the Eighth Amendment, against Defendants Craig Blumer and Steve Schmidt; deliberate indifference to another serious medical need, in viola tion of the Eighth Amendment, and retaliation, in violation of the First Amendment, against all Defendants except for Steve Schmidt. 10 Plaintiff's Motion for Injunction DENIED. Copies of Plaintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. See Order for further details. (cc: all counsel, via mail to Plaintiff and Warden at Waupun Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOHN H. BALSEWICZ, also known as
MELISSA BALSEWICZ,
Plaintiff,
v.

Case No. 17-CV-360-JPS

CRAIG BLUMER, SGT. DARRYL
FRANKLIN, EDWARD KREMER,
GERALD LENNOP, MICHAEL
HELMEID, LINDSAY DANFORTH,
JOHN BESSERT, BRIAN SCHRAA,
JOHN LENZ, JENNIFER SRNKA, and
STEVE SCHMIDT,

ORDER

Defendants.

Plaintiff, who is incarcerated at Waupun Correctional Institution,
filed a pro se complaint under 42 U.S.C. § 1983, alleging that her civil rights
were violated. (Docket #1). The Court screened Plaintiff’s complaint and
allowed her to proceed on two Eighth Amendment claims against
Defendants Dr. Craig Blumer (“Dr. Blumer”), Darryl Franklin (“Franklin”),
Edward Kremer (“Kremer”), Lindsay Danforth (“Danforth”), Jennifer
Srnka (“Srnka”), John Bessert (“Bessert”), Brian Schraa (“Schraa”), Gerald
Lennop (“Lennop”), Michael Helmeid (“Helmeid”), and John Lenz
(“Lenz”). (Docket #14 at 12). Defendants answered the complaint, see
(Docket #18), and shortly thereafter, Plaintiff timely filed an amended
complaint, see (Docket #19); see also Fed. R. Civ. P. 15(a)(2).
Defendants have requested that the Court screen Plaintiff’s amended
complaint. (Docket #20). That request will be granted, as 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).
Upon screening of Plaintiff’s original complaint, the Court found
that Plaintiff stated two claims. The first was an Eighth Amendment claim
against Dr. Blumer for deliberate indifference to her serious medical need
arising from her gender dysphoria. (Docket #14 at 9-12). The second was an
Eighth Amendment claim against Franklin, Kremer, Danforth, Srnka,
Bessert, Schraa, Lennop, Helmeid, Lenz, and Dr. Blumer for deliberate
indifference to her serious medical need arising from her repeated threats
and attempts of suicide. Id.
Plaintiff’s amended complaint is premised on the same operative
facts as is her original complaint; she alleges that she has gender dysphoria,
which Defendants failed to properly treat, and that this condition, and
Defendants’ actions, have caused Plaintiff to develop suicidal tendencies,
which Defendants also failed to treat. See (Docket #19). Her amended
complaint provides additional factual details, adds one Defendant, Dr.
Steve Schmidt (“Dr. Schmidt”), and purports to add two claims, “sexual
misconduct” and “retaliation.” Id. at 2-4.
As to the newly-named Defendant, Dr. Schmidt, Plaintiff alleges that
he is a supervisor in the psychological unit at Waupun Correctional
Institution (“WCI”). Id. at 5. Plaintiff is currently incarcerated at WCI, and
it appears that she was previously incarcerated at WCI before being moved
Page 2 of 6

to the Wisconsin Resource Center, where most of the events of the
complaint took place. Id. On March 31, 2016, she was seen by a clinician at
WCI, Bonnie Halper (“Halper”), who prepared a medical report
documenting Plaintiff’s gender dysphoria. Id. Halper apparently
recommended that the report be sent to the “Gender Dysphoria
Committee” so that the committee could consider hormone therapy for
Plaintiff. Id. However, Halper’s supervisor, Dr. Schmidt, did not forward
the report. Id. According to Plaintiff, this caused a significant delay in her
being evaluated for, and receiving, treatment for gender dysphoria. Id. The
delay caused her condition to “get worse,” and she experienced
“depression, pain, and suicidal attempts.” Id.
Plaintiff’s allegations are sufficient to state a claim against Dr.
Schmidt for deliberate indifference to her serious medical need related to
her gender dysphoria. To state a claim of deliberate indifference to a serious
medical need, the plaintiff must show: (1) an objectively serious medical
condition; (2) that the defendants knew of the condition and were
deliberately indifferent in treating it; and (3) this indifference caused the
plaintiff some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). As
noted in the Court’s screening of Plaintiff’s original complaint, the Seventh
Circuit has held that gender dysphoria is a serious medical need. See Fields
v. Smith, 653 F.3d 550, 556 (7th Cir. 2011). Plaintiff’s allegations that Dr.
Schmidt knew about her condition when he received Halper’s report and
chose not to forward that information to the committee that controlled
Plaintiff’s treatment are, at this stage, sufficient to state a deliberate
indifference claim.
The other new information Plaintiff provided in her amended
Complaint—styled as claims for “sexual misconduct” and “retaliation”—
Page 3 of 6

arguably amount to a claim for retaliation under the First Amendment.
Plaintiff alleges that she had inappropriate sexual interactions with Srnka
and reported those interactions to her therapist. (Docket #19 at 8). Plaintiff’s
report about Srnka apparently led prison officials to investigate Srnka
pursuant to the Prison Rape Elimination Act (“PREA”). Id. Plaintiff believes
Srnka, and the other named Defendants (apart from Dr. Schmidt, whose
name is not mentioned in or around these allegations), were upset that she
reported Srnka and retaliated by causing Plaintiff to be removed from the
“DBT” therapy she had been receiving and by ignoring her suicidal
tendencies. Id. at 6, 8.
“A complaint states a claim for retaliation when it sets forth ‘a
chronology of events from which retaliation may plausibly be inferred.’”
Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (citation omitted). In
this case, Plaintiff alleges that Defendants took adverse action against her,
by removing her from needed therapy, shortly after Plaintiff made a PREA
report about Srnka. The filing of a complaint, grievance, or lawsuit by a
prisoner is activity protected under the First Amendment. See Gomez v.
Randle, 680 F.3d 859, 866 (7th Cir. 2012); Bridges v. Gilbert, 557 F.3d 541, 552
(7th Cir. 2009). The chronology provided in Plaintiff’s amended complaint
arguably presents a colorable claim of retaliation; therefore, the claim
survives screening under § 1915A. See Zimmerman, 226 F.3d at 574
(reversing district court’s dismissal on screening because inmate’s
allegations established that “the exercise of his [First Amendment] right
was closely followed by the retaliatory act”).
Therefore, the Court finds that Plaintiff may proceed on the two
claims described in the Court’s first screening order, as well as a claim
under the First Amendment. In other words, Plaintiff’s amended complaint
Page 4 of 6

states the following claims: (1) an Eighth Amendment claim of deliberate
indifference to her serious medical need arising from her gender dysphoria;
(2) an Eighth Amendment claim of deliberate indifference to her serious
medical need arising from her repeated threats and attempts of suicide; and
(3) a First Amendment claim for retaliation.
Finally, Plaintiff has filed a motion for an injunction in which she
states that she believes Defendants have destroyed or withheld records
relevant to her case. (Docket #10). She asks the Court to enjoin Defendants
from destroying or withholding evidence. Id. at 1. Plaintiff’s motion is
accompanied by one document purporting to be a request for records and
another that appears to be a record relating to her treatment. Id. at 2-3.
Plaintiff’s motion is premature and must be denied at this time. Following
entry of this Order, the Court will enter a Scheduling Order that explains,
among other things, the discovery process both parties may use to collect
evidence in support their cases. Plaintiff may serve discovery requests on
Defendants, and if, after receiving responses to those requests, Plaintiff still
believes that relevant records or other evidence is missing or fabricated, she
may file a discovery motion that conforms with the federal and local rules.
Accordingly,
IT IS ORDERED that Plaintiff’s amended complaint (Docket #19) be
and the same is hereby ACCEPTED and is now the operative complaint in
this matter;
IT IS FURTHER ORDERED that Defendants’ motion for the Court
to screen the amended complaint (Docket #20) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for an injunction
(Docket #10) be and the same is hereby DENIED;
Page 5 of 6

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 will be
electronically sent to the Wisconsin Department of Justice for service on
Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants 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 a copy of this Order be sent to the
warden of the institution where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 29th day of December, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 6 of 6