Osborne v. Wisconsin Department of Corrections et al
ORDER signed by Judge J.P. Stadtmueller on 2/12/2018: DENYING 50 Plaintiff's Motion for Reconsideration and DENYING 55 Plaintiff's Fourth Motion to Appoint Counsel. (cc: all counsel, via mail to Joshua J. Osborne at Redgranite Correctional Institution) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSHUA J. OSBORNE,
Case No. 17-CV-754-JPS
MICHAEL MEISNER, SANDRA
HAUTAMAKI, ANDREW WESNER,
CHAD KELLER, MATTHEW FOCHS,
JASON RALLS, DEANNA TIMM,
COREY HEFT, KIMBERLY JOHNSON,
TRAVIS RODER, and BRIAN SMITH,
Plaintiff, who is incarcerated at Redgranite Correctional Institution,
filed a pro se complaint claiming his civil rights were violated. See (Docket
#21). Before the Court are two motions from Plaintiff. The first requests
reconsideration of the Court’s recent order granting partial summary
judgment to Defendants. (Docket #50). The second is Plaintiff’s fourth
motion requesting the appointment of counsel. (Docket #55). The Court
will deny both motions.
Plaintiff’s Motion for Reconsideration
Plaintiff filed a motion on January 4, 2018 asking that the Court
reconsider its December 27, 2017 order granting partial summary
judgment to Defendants. (Docket #45). In that order, the Court found that
Plaintiff failed to exhaust his prison administrative remedies with respect
to his claim of deliberate indifference to his serious medical needs. Id. at 5–
6. His initial inmate complaint, filed around the time of the relevant events
in 2016, did not raise the issue of allegedly inadequate medical care, id. at
4–5, and while a subsequent inmate complaint in late 2017 did mention
medical care, it was rejected because it was submitted nearly a year
outside the permissible time period, id. at 6. As a result, the medical
deliberate indifference claim had to be dismissed. Id.; Pozo v. McCaughtry,
286 F.3d 1022, 1025 (7th Cir. 2002); Smith v. Zachary, 255 F.3d 446, 452 (7th
Plaintiff seeks reconsideration of that order, arguing that his 2016
inmate complaint, considered alongside his contemporaneous healthcare
requests and other actions, put Defendants on notice of his medical claim.
(Docket #50 at 2). Although he cites no authority supporting his motion,
Federal Rule of Civil Procedure 60(b) permits a court to revisit orders in
civil cases. Fed. R. Civ. P. 60(b). That Rule allows the Court to vacate an
order based on, inter alia, a mistake, newly discovered evidence, or “any
other reason that justifies relief.” Fed. R. Civ. P. 60(b). Relief under Rule 60
is an “extraordinary remedy and is granted only in exceptional
circumstances.” Wickens v. Shell Oil Co., 620 F.3d 747, 759 (7th Cir. 2010).
The Court’s determination is constrained only by its sound discretion.
Venson v. Altamirano, 749 F.3d 641, 656 (7th Cir. 2014).
Rule 60(b) affords Plaintiff no relief here. First, and most
importantly, Plaintiff’s argument is one he made in opposition to
Defendants’ motion for partial summary judgment. See (Docket #38 at 3);
(Docket #47 at 2). The Court considered and rejected it, finding that the
September 2016 inmate complaint and Plaintiff’s appeal thereof raised
issues only regarding the conditions of Plaintiff’s cell, not improper
medical care. (Docket #45 at 5–6). A motion for reconsideration is not to be
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used as a second bite at the apple. See Oto v. Metro. Life Ins. Co., 224 F.3d
601, 606 (7th Cir. 2000). For that reason alone, the Court declines to revisit
its prior ruling.
To be sure, were it to reach the merits, the Court would find
Plaintiff’s argument no more persuasive now than it was when first
offered. As the Court previously explained, the inmate complaint in
question stated, in pertinent part:
I am sleeping on the floor in seg[.] . . . On 9-21-16 I was told
by C/O II to pack my stuff from D-wing that I was moving to
C-wing and going to have a cellie. Since [I]’ve moved in C-6
I’ve been sleeping on the floor and I have bug bites all over
me[.] I’ve told the C/O’s and got the response to[o] bad
we’re over crowded. The rooms in seg are set up for one
person not two people. My mat[t]ress is on the floor on top
the shower drain and is right next to the toilet. Thank you
for your time in this matter.
(Docket #35-2 at 11). In the “action requested” section, Plaintiff said:
“[e]ither to be on the slab of concrete provided to us while in seg or to just
be in a cell me[a]nt for one person and only one person not two. Or let me
into [general population].” Id. at 12. After his complaint was dismissed,
Plaintiff appealed, arguing that
On 9-22-16 I was forced out of D-wing RHU to C-wing RHU
due to work being done but was forced to double up in a
single cell and had to sleep on the floor on top [of] a shower
drain next to a toilet 2 feet from on a flat single mattress not
even 6 inch off the ground and no accommodation. I spent 2
weeks in this inhuman and unsanitary state and notif[i]ed all
possibil[ities] about this issue and was denied/dismissed on
my ICRS complaint and got denied of all request to move
Id. at 13. The dismissal was affirmed on appeal.
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Plaintiff argues that he adequately notified prison officials of his
lack of medical care for purposes of exhaustion. He reasons that first, prior
to submitting his 2016 complaint, he warned several prison officials
verbally, in health services requests, and by letter of the bug bites he
received as a result of sleeping next to the floor drain, as well as the bodycovering rashes that the bites caused. (Docket #50 at 2, 6). Next, Plaintiff
contends that his inmate complaint and appeal highlighted the medical
aspect of his concerns, as he mentioned both bug bites occurring all over
his body and, on appeal, that he was living in an “unsanitary state.”
(Docket #35-2 at 11–13); (Docket #50 at 2–3, 6–7). Thus, prison officials,
reflecting on his pre-complaint warnings together with his inmate
complaint, should have concluded that he was in need of medical care.
(Docket #50 at 3).
Plaintiff’s argument is about the scope of his inmate complaint, and
the Seventh Circuit has offered guidance on this question. To adequately
notify prison officials of a particular claim, an inmate’s complaint must
contain the information required by the prison’s administrative rules.
Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002). Where those rules are
silent, “a grievance suffices if it alerts the prison to the nature of the wrong
for which redress is sought.” Id. at 650; Riccardo v. Rausch, 375 F.3d 521,
524 (7th Cir. 2004). An inmate need not state “facts, articulate legal
theories, or demand particular relief,” nor must he name each potential
defendant, so long as the grievance “object[s] intelligibly to some asserted
shortcoming.” Strong, 297 F.3d at 650; Riccardo, 375 F.3d at 524. In this
way, the approach to interpreting inmate complaints is akin to the federal
notice pleading system. Dye v. Kingston, 130 F. App’x 52, 55 (7th Cir. 2005).
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Wisconsin’s administrative rules provide little guidance as to the required
contents of an inmate complaint; however, those rules do require that
offender complaints “[c]ontain only one issue per complaint, and  clearly
identify the issue.” Wis. Admin. Code § DOC 310.09(1)(e).
Plaintiff’s complaint falls short of satisfying these lenient standards.
At the outset, the Court rejects Plaintiff’s contention that prison officials
are required to interpret inmate complaints using other knowledge they
might have, from whatever source. As the Court made clear in its
summary judgment order, Plaintiff’s verbal complaints, health services
requests, and other notification efforts, however robust, have no bearing
whatsoever on the scope of his inmate complaint. (Docket #45 at 5–6).
Instead, to achieve exhaustion, Plaintiff had to raise his medical concerns
through the grievance process itself. Id.1
To the extent Plaintiff argues that his 2016 inmate complaint
suffices, standing alone, to notify Defendants of his medical needs, he is
mistaken. Plaintiff’s complaint was directed at the conditions of his cell in
segregation, including having to sleep on the floor, being double-celled,
and having to sleep next to the toilet. True, Plaintiff mentioned “bug bites
all over me,” (Docket #35-2 at 11), but nothing in the complaint suggests
that the bug bites caused oozing, body-covering rashes that required
medical attention. Instead, considered in the context of the complaint, they
formed merely one part of Plaintiff’s discontent with the living situation
To the extent Plaintiff believes that his conduct achieved substantial
compliance with the grievance process, in conformity with precedent from the
Third Circuit, (Docket #50 at 3), it does not matter; in the Seventh Circuit,
substantial compliance is not enough. Pozo, 286 F.3d at 1025.
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inside his cell. Notably, Plaintiff did not request any medical care in this
complaint; he asked only that he be provided different accommodations.
Similarly, a single reference to “unsanitary” conditions in his
appeal of the complaint’s dismissal did not raise medical concerns. Id. at
13. Unsanitary cell conditions can be part of a claim for inadequate
conditions of confinement, but they do not require or even suggest the
conclusion that the inmate in question has suffered medical harm as a
result of those conditions. In other words, an inmate could rightfully
complain about a dirty or bug-ridden cell without suffering an injury in
need of treatment.
A complaint about the bugs or unsanitary conditions alone would
not, even construed generously, induce prison officials to consider
whether adequate medical care was being provided. Riccardo, 375 F.3d at
524. Plaintiff concedes that the bug bites were, at best, indicative of a
medical issue only “in its early stages of progression.” (Docket #50 at 4).
While Plaintiff is correct that he did not need to use certain magic words
to put his medical claims in issue, id. at 5, what he submitted was not
enough. In the parlance of Wisconsin’s prison regulations, Plaintiff failed
to “clearly identify” medical care as his issue of concern. Wis. Admin.
Code § DOC 310.09(1)(e).
Moreover, just as Plaintiff cannot deploy his pre-grievance
statements to construe his complaint, he cannot rest on a claim that the
investigation into his inmate complaint would likely yield information
about his medical concerns. See id. That principle works in employment
discrimination cases, see Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 500 (7th
Cir. 1994), but it is not found in Wisconsin’s prison regulations, which
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control here, Pavey v. Conley, 663 F.3d 899, 903 (7th Cir. 2011), nor in any
case this Court could locate interpreting them. Plaintiff’s lone citation on
this point, Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000), simply does not
stand for that idea.
As such, the Court finds that the 2016 inmate complaint did not
object intelligibly to an asserted failure to provide medical care, and such
a claim therefore did not fall within the scope of the complaint. See Strong,
297 F.3d at 650. The Court correctly determined that Plaintiff failed to
exhaust his prison administrative remedies as to a claim of deliberate
indifference to his serious medical needs. There being no compelling
reason to vacate or amend the Court’s prior decision on this point, the
motion for reconsideration must be denied. Wickens, 620 F.3d at 759.
Plaintiff’s Fourth Motion for Appointment of Counsel
The other pending motion ripe for disposition is Plaintiff’s fourth
motion requesting the appointment of counsel. (Docket #55). The Court
has explained three times now that, as a civil litigant, Plaintiff has no
automatic right to court-appointed counsel. Luttrell v. Nickel, 129 F.3d 933,
936 (7th Cir. 1997). However, under 28 U.S.C. § 1915(e)(1), the “court may
request an attorney to represent any person unable to afford counsel.” The
court should seek counsel to represent the plaintiff if: (1) he has made
reasonable attempts to secure counsel; and (2) “‘the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.’” Navejar v. Iyiola, 718 F.3d 692, 696 (7th
Cir. 2013) (quoting Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en
banc)). The Seventh Circuit has emphasized that “[t]he question is not
whether a lawyer would present the case more effectively than the pro se
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plaintiff; ‘if that were the test, district judges would be required to request
counsel for every indigent litigant.’” Pruitt, 503 F.3d at 655 (quoting
Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)) (internal quotation
Instead, “[t]he question is whether the plaintiff appears
competent to litigate his own claims, given their degree of difficulty, and
this includes the tasks that normally attend litigation: evidence gathering,
preparing and responding to motions and other court filings, and trial.”
As with his three prior motions, Plaintiff’s instant request for
counsel must be denied because, notwithstanding his efforts to obtain his
own counsel, he has not presented sufficient evidence or argument
showing that he cannot litigate this matter competently on his own. His
renewed motion only repeats arguments from prior motions, so it
imprisonment and lack of legal training will limit his ability to litigate this
case and perform research and investigation, that this case is “complex,”
and that trial “will likely involve conflicting testimony,” which counsel
will be better able to handle. (Docket #55 at 1–2). The Court has already
twice rejected these as sufficient reasons to warrant the appointment of
counsel at this time, (Docket #20 at 2–3); (Docket #30 at 2), and, as before,
Plaintiff offers no reason to change course.
Further, Plaintiff restates his prior contention that he suffers from
cerebral palsy, which he says affects his capacity to litigate. (Docket #55 at
1–2). In his third motion seeking counsel, the Court found Plaintiff’s
claimed condition was insufficiently supported by the affidavit he
submitted. (Docket #30 at 3). This time, however, Plaintiff has not
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submitted a single piece of corroborating evidence, whether an affidavit,
medical record, or otherwise, to show that he in fact has cerebral palsy.
Plaintiff claims he wants to send the Court video footage of his condition
but cannot convince the prison to release it to him, (Docket #55 at 2), but
video of his condition is not the only avenue for Plaintiff to prove his
claimed disability. Yet again, the Court finds the evidence of Plaintiff’s
condition lacking, and thus there is no suitable basis for the appointment
of counsel at this time. As such, the Court will deny Plaintiff’s motion for
appointment of counsel without prejudice.
IT IS ORDERED that Plaintiff’s motion for reconsideration (Docket
#50) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s fourth motion
requesting the appointment of counsel (Docket #55) be and the same is
Dated at Milwaukee, Wisconsin, this 12th day of February, 2018.
BY THE COURT:
U.S. District Judge
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