Osborne v. Wisconsin Department of Corrections et al

Filing 22

ORDER signed by Judge J.P. Stadtmueller on 8/25/2017 ORDERING that 21 Plaintiff's Amended Complaint be the operative complaint in this action. Plaintiff PERMITTED to proceed on claims of: inadequate conditions of confinement, in violation o f the Eighth Amendment, against Defendants Meisner, Hautamaki, Fochs, Wesner, Keller, Ralls, Timms, Heft, Roder, Smith, and Johnson; medical malpractice, under Wisconsin state law, against Defendants Hoosen, Klenke, and Thompson; and deliberate indi fference to his serious medical needs, in violation of the Eighth Amendment, against all Defendants. Plaintiff's Amended Complaint and this Order to be electronically sent to the DOJ for service on previously unserved Defendants; all Defendants to file responsive pleading to Plaintiff's Amended Complaint within 60 days. See Order. (cc: all counsel, via mail to Joshua J. Osborne and Warden at Redgranite Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA J. OSBORNE,

v.

Plaintiff,

Case No. 17-CV-754-JPS

MICHAEL MEISNER, SANDRA
HAUTAMAKI, ANDREW WESNER,
CHAD KELLER, MATTHEW FOCHS,
SGT. RALLS, C.O. TIMMS, C.O.
HEFT, C.O. JOHNSON, C.O. RODER,
R.N. THOMPSON, R.N. BETTY
HOOSEN, NURSE KLENKE, and
C.O. SMITH,

ORDER

Defendants.
On July 6, 2017, the Court screened Plaintiff’s original complaint.
(Docket #9). The Court permitted Plaintiff to proceed on claims of
inadequate conditions of confinement, medical malpractice, and deliberate
indifference to his serious medical needs. Id. at 8. On July 21, 2017, the Court
entered a scheduling order in this matter and afforded Plaintiff until
August 18, 2017, to file an amended complaint if he chose to do so. (Docket
#14). Plaintiff filed an amended complaint on August 9, 2017. (Docket #21).
The Court now turns to screening that amended complaint.
As noted in the first screening order, 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 “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). All of the
standards cited in the first screening order remain applicable here. (Docket
#9 at 1–3).
Plaintiff’s amended complaint largely tracks the allegations made in
the original complaint, but it seeks to refine the facts and identify more of
the actors involved. To ensure continuity in the narrative, the Court will
largely repeat the narrative from the original screening order.
Plaintiff alleges that he was placed in the restricted housing unit
(“RHU”) on temporary lock-up (“TLU”) status on September 7, 2016.
(Docket #21 at 2). He was sent to the RHU pending investigation into a
physical altercation in which he was involved. Id. When he arrived at the
particular RHU cell to which he was assigned, he was told he would be put
in a cell with another inmate and that he would sleep on the floor with a
mattress. Id. He protested, claiming that he had to be single-celled due to
his TLU status and that he wanted to avoid sleeping on the floor because it
was dirty with dust and “black stuff.” Id. He was told by Sgt. Ralls (“Ralls”)
that he would be tazed, issued a conduct report, and forced into the cell if
he did not go in voluntarily. Id.
On September 22, 2016, Plaintiff asked to speak with the RHU
sergeant, Matthew Fochs (“Fochs”). Id. Fochs did not respond. Id. He then
asked to speak with the RHU captain, Andrew Wesner (“Wesner”), on
September 24, 2016, but again he was ignored. Id. Next, on September 26,
2016, he contacted the prison deputy warden, Sandra Hautamaki
(“Hautamaki”), about the “floor situation” and was told to follow the chain
of command and contact officer Chad Keller (“Keller”), who also worked

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in the RHU. Id. Keller likewise ignored Plaintiff’s requests for aid, but
Plaintiff does not say when he reached out to Keller. Id.
During his confinement in the RHU, Plaintiff claims that night after
night as he slept, he was repeatedly bitten by bugs crawling up through the
drain in the cell floor, which he slept next to. See id. The bug bites caused a
severe rash all over his body. Id. at 2–3. The rash itched, burned while
showering, and exuded puss. Id. Plaintiff reports that showering was so
painful, he had to take “bird baths” by dabbing himself with his bedsheets,
which were soaked with his cellmate’s urine since he slept on the floor near
the toilet. Id. at 3. Plaintiff asserts that during this time, he complained
repeatedly about his cell conditions and his rash to C.O. Timms (“Timms”),
C.O. Heft (“Heft”), C.O. Roder (“Roder”), C.O. Smith (“Smith”), and C.O.
Johnson (“Johnson”), all of whom either directed him to contact the Health
Services Unit (“HSU”) or told him to “deal with it.” Id. at 2.
Plaintiff submitted his two HSU requests about these conditions, one
on September 24 and another on September 28, 2016. Id. Plaintiff contends
that R.N. Betty Hoosen (“Hoosen”) ignored the first request “for at least a
week.” Id. Plaintiff was eventually taken to the HSU on September 30, 2016,
but he says he was not seen by medical staff and was simply told to come
back later. Id. at 3. As for R.N. Klenke (“Klenke”), Plaintiff appears to claim
that she ignored one or more of his HSU requests. See id. Likewise, R.N.
Thompson (“Thompson”) told Plaintiff she would call him back later
because she was busy, but never did so. Id. Plaintiff asserts that he was thus
never seen at all by medical personnel although he had properly submitted
HSU requests. Id.
Plaintiff also filed an inmate grievance about the conditions of his
cell. Id. (The original complaint dated the grievance September 26, 2016, but
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the amended complaint no longer contains this detail.) He alleges that the
complaint was dismissed by the complaint examiner and eventually
reviewed by the prison warden, Michael Meisner (“Meisner”). Id.
According to Plaintiff, no one ever came to investigate the conditions of his
cell. Id.
As in his original complaint, Plaintiff raises the following legal
claims: (1) inadequate conditions of confinement, in violation of the Eighth
Amendment; (2) medical malpractice under Wisconsin state law; (3)
deliberate indifference to his serious medical needs, in violation of the
Eighth Amendment. Id. at 4. He seeks declaratory judgment as well as
compensatory and punitive damages. Id. at 5.
As explained in the first screening order, allegations like Plaintiff’s
suffice pass the low threshold set at the screening stage. First, being forced
to sleep on a filthy, urine-soaked mattress on the floor, despite being bitten
by bugs coming out of a floor drain each night, suffices to state a claim
under the Eighth Amendment based on conditions of confinement. See
Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008); Caroll v. DeTella, 255
F.3d 470, 472 (7th Cir. 2001). Further, unlike his last complaint, Plaintiff now
makes clear the Meisner was informed of the substandard conditions in his
RHU cell and did nothing. At this early stage, allegations that Meisner
personally knew of Plaintiff’s plight overcome the usual presumption that
supervisors are not liable for their employee’s constitutional violations. See
Pepper v. Vill. of Oak Park, 430 F.3d 809, 810 (7th Cir. 2005); Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Thus, the conditions of
confinement claim can now proceed against Meisner.
Second, having one’s complaints be ignored and being completely
denied medical care despite a body-covering rash and repeated requests for
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aid states a claim for deliberate indifference to medical needs under the
Eighth Amendment. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). It
may be that the correctional officers were within their bounds to simply
refer Plaintiff to the HSU with healthcare concerns, Arnett v. Webster, 658
F.3d 742, 755 (7th Cir. 2011), but the Court will not foreclose his claim
against them at this juncture.
Finally, the Court finds that the medical malpractice claim can
proceed against the nurse Defendants. See Paul v. Skemp, 625 N.W.2d 860,
865 (Wis. 2001). It should be remembered that although a constitutional
claim arising from medical care can be levied against non-medical
personnel, there is no authority supporting the idea that the correctional
officers or their supervisors, including Meisner, could be held to the
standard of care applicable in medical negligence cases. See Wade v. Castillo,
658 F. Supp. 2d 906, 919 (W.D. Wis. 2009) (noting that “Wisconsin law
defines medical negligence as the failure of a medical professional to
‘exercise that degree of care and skill which is exercised by the average
practitioner in the class to which he belongs, acting in the same or similar
circumstances’’”) (quoting Sawyer v. Midelfort, 595 N.W.2d 423, 435 (Wis.
1999)). Further, it is clear from Plaintiff’s amended complaint that his
medical malpractice claim is directed at medical personnel only. See
(Docket #21 at 4). He makes no attempt to state a general negligence claim
against the non-medical Defendants. Cf. Zuege v. Knoch, No. 09–cv–451–
wmc, 2010 WL 3851994, at *6 (W.D. Wis. Sept. 29, 2010).
For the reasons stated above, Plaintiff will be permitted to proceed
on the following claims: (1) inadequate conditions of confinement, in
violation of the Eighth Amendment, against Defendants Meisner,
Hautamaki, Fochs, Wesner, Keller, Ralls, Timms, Heft, Roder, Smith, and
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Johnson; (2) medical malpractice under Wisconsin state law, against
Defendants Hoosen, Klenke, and Thompson; and (3) deliberate indifference
to his serious medical needs, in violation of the Eighth Amendment, against
Defendants Hoosen, Klenke, Thompson, Meisner, Hautamaki, Fochs,
Wesner, Keller, Ralls, Timms, Heft, Roder, Smith, and Johnson. 28 U.S.C. §
1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s amended complaint (Docket #21)
shall be the operative complaint in this action;
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 the previously
unserved Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court, all
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
officer in charge of the agency where the inmate is confined.
Dated at Milwaukee, Wisconsin, this 25th day of August, 2017.
BY THE COURT:

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

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