Adams v. Hepp et al

Filing 16

ORDER signed by Judge Pamela Pepper on 7/17/2017. 2 plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. 3 11 plaintiff's MOTIONS to Appoint Counsel DENIED without prejudice. Defendants Dr. Larson and Candi Whitman DISMISSED. Defendant Hepp to file responsive pleading within 60 days. Agency having custody of plaintiff to collect $347.51 balance of filing fee from plaintiff's prison trust account in accordance with 28 USC §1915(b)(2). Parties may not begin to conduct discovery until after the court enters a scheduling order. (cc: all counsel, via mail to Warden and Paul Adams at Fox Lake Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

PAUL ALLEN ADAMS,

Case No. 17-cv-699-WED-PP
Plaintiff,

v.
RANDALL R. HEPP,
DR. LARSON,
CANDI WHITMAN, and
JOHN AND JANE DOES,
Defendants.
ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYING THE FILING FEE (DKT. NO. 2), SCREENING THE
PLAINTIFF’S COMPLAINT, AND DENYING WITHOUT PREJUDICE THE
PLAINTIFF’S MOTIONS TO APPOINT COUNSEL (DKT. NOS. 3, 11)
Plaintiff Paul Allen Adams, who is representing himself, filed a complaint
under 42 U.S.C. §1983, alleging that his constitutional rights were violated.
Dkt. No. 1. The plaintiff also filed a motion for leave to proceed without
prepayment of the filing fee, dkt. no. 2, and two motions asking the court to
recruit counsel to represent him, dkt. nos. 3, 11. This order resolves the
plaintiff’s motions and screens his complaint.
The case currently is assigned to Magistrate Judge Duffin. The
defendants, however, have not had the opportunity to consent to the
magistrate judge presiding over the case. For this reason, the clerk’s office has
referred the case to United States District Judge Pamela Pepper for the limited

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purpose of screening the complaint. The clerk’s office will return the case to
Magistrate Judge Duffin after entry of this order.
Motion for Leave to Proceed without Prepayment of the Filing Fee
The Prison Litigation Reform Act gives courts discretion to allow
prisoners to proceed with their lawsuits without prepaying the $350 filing fee,
as long as they comply with certain requirements. 28 U.S.C. §1915. One of
those requirements is that they pay an initial partial filing fee. On May 25,
2017, the court ordered the plaintiff to pay an initial partial filing fee of $2.49.
The plaintiff paid that fee on June 7, 2017. Accordingly, the court will grant his
motion to proceed without prepayment of the filing fee. The plaintiff must pay
the remainder of the filing fee over time in the manner explained at the end of
this order.
Screening of the Complaint
The court is required 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, or part of it,
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).
To state a cognizable claim under the federal notice pleading system, a plaintiff
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).

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To state a claim for relief 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 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 the plaintiff’s 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)).
The Complaint’s Allegations
The plaintiff alleges that about six months after he arrived at Fox Lake
Correctional Institution, he began to have diarrhea about seven times per day.
He experienced severe pain and bleeding during his bowel movements and lost
his ability to control them. The plaintiff states that he wrote to Health Services
several times per week, begging for help and services. After about two years, a
nurse practitioner finally examined him, and referred him to a specialist, but it
was another six months before the specialist actually saw him. The plaintiff
has had two surgeries, but states that he is still in pain. The plaintiff alleges
that he filed more than two hundred requests to Health Services and
complained to defendant Warden Randall Hepp (as well as other individuals
who the plaintiff did not name as defendants), but was ignored.

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Analysis
Section 1983 “creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional violation.” Vance v. Peters,
97 F.3d 987, 991 (7th Cir. 1996) (quoting Sheik-Abdi v. McClellan, 37 F.3d
1240, 1248 (7th Cir. 1994)). In other words, because §1983 makes public
employees liable “for their own misdeeds but not for anyone else’s,” Burks v.
Raemisch, 555 F.3d 592, 596 (7th Cir.2009), a plaintiff must specify in his
allegations what each individual defendant did (or did not do) to violate his
constitutional rights.
Although the plaintiff named Dr. Larson and Candi Whitman as
defendants in the caption of his complaint, he did not mention them anywhere
in his description of what happened to him. The plaintiff has not alleged any
misconduct on their part. The court will dismiss Larson and Whitman as
defendants.
Even though the plaintiff’s allegations against them are somewhat vague,
the court will allow him to proceed against “John and Jane Does” on an Eighth
Amendment deliberate indifference claim. The plaintiff explains that he does
not know the names of the people at the Health Services Unit (HSU) who
ignored his requests for help or failed to schedule his appointment with a
specialist. Construing the plaintiff’s allegations broadly, as it must, the court
infers that the plaintiff’s references to unknown HSU staff are his way of
referring to the “HSU manager and others Whitman refuses to give me their

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names” he lists in the caption. The court refers to these defendants whose
names the plaintiff does not know as “John and Jane Doe” defendants.
The court also will allow the plaintiff to proceed on an Eighth
Amendment deliberate indifference claim against defendant Warden Randall
Hepp. The plaintiff alleges that during the two years his pleas for help were
ignored, he wrote Hepp, but Hepp did nothing to help him obtain a response.
These allegations are sufficient for the court to allow the plaintiff to proceed
against Hepp on his deliberate indifference claim.
Once Hepp answers the plaintiff’s complaint, the court will enter a
scheduling order setting deadlines for the parties to complete discovery and file
dispositive motions. After the court enters that scheduling order, the plaintiff
may serve discovery requests (written questions or requests for documents) on
Hepp’s attorney in an effort to identify the real names of the Doe defendants.
Once he knows the Doe defendants’ real names, he should file a motion asking
the court to substitute the real names for the Doe placeholders. The plaintiff
must not, however, serve any discovery requests on Hepp’s attorney until after
the court enters a scheduling order.
Motions to Appoint Counsel
On the same day the court received the plaintiff’s complaint, the court
received a motion asking the court to recruit an attorney to represent him. Dkt.
No. 2. In that motion, he explained that he did not believe that he could litigate
the case on his own because the case involves complex medical issues, he has
mental health issues, and he has no legal training. The plaintiff attached to his

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motion copies of responses from several attorneys who declined his request to
represent him. Id.
On June 26, 2011, the court received a second motion to appoint
counsel. Dkt. No. 11. While the plaintiff put the case number for this case at
the top of his motion, he refers to a June 16, 2017 order from the court. The
court did not issue an order in this case on June 16, 2017. Perhaps the
plaintiff intended to file this motion in the other case he listed on the motion,
17-cv-699.
In July, the plaintiff has filed three different supplements to his motion
for appointment of counsel (and again, he puts both this case number and case
number 17-cv-713 at the top of each supplement). Dkt. Nos. 13, 14 and 15. In
these supplements, the plaintiff discusses various medical issues he has and
his psychological problems, and reiterates the claims he made in his complaint.
A court has discretion in a civil case 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). After a plaintiff demonstrates he has made a
reasonable attempt to hire counsel on his own, the court 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 v. Mote, 503 F.3d 647, 655 (7th Cir. 2007)). To decide that, 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

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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)).
The court finds that the plaintiff has satisfied the first step in the process
described above—he has shown that he made several attempts to hire counsel
on his own. The court will not, however, appoint counsel to represent the
plaintiff at this point in the case.
Unfortunately, the vast majority of incarcerated persons who file civil
rights actions—and there are many of them—are in the same situation as the
plaintiff. The court cannot recruit counsel for every incarcerated person who
asks: there are simply too many prisoners who want an attorney and too few
attorneys who are able or willing to represent them on a pro bono basis. That is
why the court must look at each plaintiff’s pleadings and the nature of each
plaintiff’s case to determine whether the case is so complex that the plaintiff
cannot represent himself. The plaintiff’s claims are serious, but factually they
are not very complex. He already has stated the facts in such a way that the
court is easily able to understand them. The plaintiff appears to have a good
grasp of his claims and, even though he states that he has mental health
issues and limited education, the court is able to understand his allegations
and the relief he seeks.

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Also, it is very early in the case. The complaint has not been served on
the defendants, and they have not responded. There is nothing further for the
plaintiff to do right now. If, later on in the case, there are things the plaintiff
needs to do that he believes he cannot handle himself, he may renew his
requests that the court appoint counsel to represent him. The court determines
that the plaintiff, for now, is capable of presenting his claims himself.
Conclusion
The court ORDERS that the plaintiff’s motion for leave to proceed
without prepayment of the filing fee is GRANTED. Dkt. No. 2.
The court ORDERS that the plaintiff’s motions to appoint counsel are
DENIED WITHOUT PREJUDICE. Dkt. Nos. 3, 11.
The court ORDERS that defendants Larson and Whitman are
DISMISSED.
The court ORDERS that, under an informal service agreement between
the Wisconsin Department of Justice and this court, copies of the complaint
and this order are being electronically sent today to the Wisconsin Department
of Justice for service on defendant Hepp.
The court ORDERS that, under the informal service agreement between
the Wisconsin Department of Justice and this court, defendant Hepp shall file
a responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
The court ORDERS that the agency having custody of the plaintiff shall
collect from his institution trust account the $347.51 balance of the filing fee,

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by collecting monthly payments from the prisoner’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. If the plaintiff is transferred to another institution, county, state,
or federal, the transferring institution shall forward a copy of this order along
with Adams’s remaining balance to the receiving institution.
The court will send a copy of this order be sent to the officer in charge of
the agency where the plaintiff is confined.
The court ORDERS that the parties may not begin to conduct discovery
until after the court enters a scheduling order setting deadlines for discovery
and dispositive motions.
The court ORDERS that the plaintiff 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
DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It
will only delay the processing of the case.
The court advises the plaintiff that if he does not timely file pleadings
and other documents, 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
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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 17th day of July, 2017.
BY THE COURT:
______________________________________
HON. PAMELA PEPPER
United States District Judge

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