Riley v. Franke et al

Filing 14

ORDER signed by Judge J.P. Stadtmueller on 9/5/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and DENYING without prejudice 8 Plaintiff's Motion to Appoint Counsel. Defendants Sgt. Fran cois, Captain Schultz, Cathy Francois, and RN Jane Doe #1 DISMISSED from action. Plaintiff PERMITTED to proceed on the following claims: use of excessive force, in violation of the Eighth Amendment, against Defendant Franke; First Amendment retaliati on against Defendant Campbell; and deliberate indifference to serious medical needs, in violation of the Eighth Amendment, against Defendants Tremel and Van Verkinter. All claims against the remaining Defendants in their official capacities DISMISS ED. Copies of Plaintiff's Complaint and this Order to be electronically sent to the Wisconsin DOJ for service on the remaining Defendants, who shall respond to the Complaint in 60 days. Agency having custody of Plaintiff to COLLECT the balance of the filing fee from Plaintiff's institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Shawn Riley and Warden at Wisconsin Secure Program Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHAWN RILEY,

v.

Plaintiff,

C.O. FRANKE, LT. CAMPBELL,
CAPT. SCHULTZ, SGT. FRANCOIS,
CATHERINE FRANCOIS, R.N. VAN
VERKINTER, R.N. TREMEL, and R.N.
JANE DOE #1,

Case No. 17-CV-891-JPS

ORDER

Defendants.
1.

INTRODUCTION
Plaintiff, who is incarcerated at the Wisconsin Secure Program

Facility, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil
rights were violated. (Docket #1). This matter comes before the Court on
Plaintiff’s motion to proceed in forma pauperis. (Docket #2). Plaintiff has been
assessed and paid an initial partial filing fee of $13.49. 28 U.S.C. § 1915(b)(4).
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. Id. § 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). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Gladney v. Pendelton Corr. Facility, 302 F.3d

773, 774 (7th Cir. 2002). The Court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or
where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327;
Gladney, 302 F.3d at 774. “Malicious,” although sometimes treated as a
synonym for “frivolous,” “is more usefully construed as intended to
harass.” Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
To state a cognizable claim under the federal notice pleading system,
the 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). It is not
necessary for the plaintiff to plead specific facts; his statement need only
“‘give the defendant 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)); Christopher v. Buss, 384 F.3d 879, 881
(7th Cir. 2004). However, a complaint that offers “‘labels and conclusions’”
or “‘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).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “‘that is plausible on its face.’” Id. (quoting Twombly, 550
U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The complaint
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.
In considering whether a complaint states a claim, courts should first
“identif[y] pleadings that, because they are no more than conclusions, are
not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal
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conclusions must be supported by factual allegations. Id. If there are wellpleaded factual allegations, the Court must “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
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); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The Court is obliged to give 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)).
2.

RELEVANT FACTS
Plaintiff’s claims arise from a period when he was confined at the

Green Bay Correctional Institution. (Docket #1 at 1).1 On August 5, 2011, he
had a run-in with C.O. Franke (“Franke”) during the passing out of
Ramadan meals. Id. at 2. Franke was dropping the meals, which came in
bags, on the filthy floors of the prisoners’ cells. Id. Plaintiff perceived what
Franke was doing and complained to Franke about it before he arrived at
Plaintiff’s cell. Id. at 1–2.
Franke nevertheless dropped Plaintiff’s meal on the ground. Id. at 2.
Plaintiff alleges that this was due to Franke’s dislike of Ramadan
participants and Muslims in general. Id. Plaintiff immediately complained
again, and the two had a heated, profanity-laden exchange. Id. Franke next

In addition to the twelve pages of allegations in the complaint itself,
Plaintiff attached nearly fifty pages of exhibits to his complaint. See (Docket #1-1).
The Court ignored these documents, as its review must be limited to the
allegations falling within the four corners of the complaint itself. Hill v. Trs. of Ind.
Univ., 537 F.2d 248, 251 (7th Cir. 1976).
1

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set Plaintiff’s milk on the cell trap door, which was open, and Plaintiff
reached out to retrieve them. Id. He thought they were too warm and asked
Franke to replace them with cold ones. Id. Franke refused, and when
Plaintiff continued to complain, he brusquely pushed the milks into the cell
and used his knee to shut the trap door onto Plaintiff’s hand. Id. at 4. When
Plaintiff exclaimed that he would file an inmate complaint about the
incident, Franke looked at him and said, “You ain’t gonna do shit!” before
walking away. Id.
Plaintiff hit the medical emergency button in his cell and requested
medical attention for his hand injury. Id. A correctional officer came and
spoke with Plaintiff briefly, left for a time, and then returned with another
officer, Sgt. Francois Id. at 5. Sgt. Francois told Plaintiff that Lt. Campbell
(“Campbell”), one of the supervisory correctional officers, ordered that
Plaintiff would be under a back-of-cell restriction to avoid further instances
of getting his hand caught in the cell trap door. Id. Plaintiff protested that
he had done nothing wrong. Id. He asked for immediate medical attention
and asked to speak with Campbell. Id.
Francois called for medical staff to see Plaintiff. Id. While they
waited, Plaintiff asked Sgt. Francois why Campbell had instituted the backof-cell restriction without conducting a full investigation, including taking
photographs of Plaintiff’s injuries, and in a seeming effort to punish
Plaintiff. Id. Sgt. Francois said that he did not know, but he would tell
Campbell that Plaintiff wanted to speak with him. Id. Plaintiff alleges that
Campbell was trying to cover up Franke’s wrongdoing by refusing to
gather evidence about the assault. Id. Plaintiff claims that he suffered the
back-of-cell restriction, which forced him to kneel six times a day in order
to be fed, for a month. Id.
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Plaintiff spoke with Campbell on August 9, 2011. Id. at 6. He asked
that photographs be taken of his injuries, but Campbell refused. Id.
Next, Plaintiff claims that he filed a timely offender complaint
against Campbell with the prison’s Inmate Complaint Examiner (“ICE”),
Catherine Francois (“Francois”). Id. According to him, she returned the
complaint to him with instructions that he attempt informal resolution of
the matter first although she knew that he had already tried this and knew
that she would reject any refiled complaint as untimely. Id. Plaintiff claims
that she was showing favoritism to her husband, Sgt. Francois. Id.
Plaintiff filed another offender complaint, this time against Franke
for his alleged assault, on August 19, 2011. Id. Francois acted as the ICE in
that case. Id. The complaint was dismissed, though Plaintiff gives little
detail about the investigation and disposition. Id. He appears to assert that
the investigation was inadequate, again because no one took photos of his
hand. Id. He says that this was another instance of Francois’ favoritism
toward correctional officers. Id.
Plaintiff then claims that Franke, in an effort to cover up his assault,
issued a retaliatory and bogus conduct report against him. Id. Plaintiff
alleges that Franke told other correctional officers, including Campbell and
Sgt. Francois, that he had in fact used excessive force against Plaintiff and
that these individuals encouraged him to cover up his actions by issuing a
fabricated conduct report that portrayed Plaintiff as the aggressor. Id.
Plaintiff points to what he sees as factual inconsistencies in the conduct
report that reveal it as a fabrication. Id.
The next step in the cover-up came when Plaintiff had a hearing on
the conduct report before Capt. Schultz (“Schultz”). Id. at 7. Plaintiff accuses
Schultz of failing to be impartial during the hearing and relying on the
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allegedly false statements of the officers. Id. Plaintiff was given a 21-day loss
of recreation privileges for his conduct. Id.
Plaintiff’s final allegations relate to the medical care he received after
his injury by Franke. Id. He was first seen by nurse Tremel (“Tremel”) about
an hour after his injury. Id. However, Plaintiff alleges that Tremel did not
fully appreciate the severity of his injuries and how they would affect his
daily activities, including his five daily prayers. Id. Plaintiff was prescribed
hot and cold packs and pain medication, but claims that he was denied
medication because the correctional officers distributing it said it had run
out and not been refilled. Id.
Plaintiff was seen several more times by prison medical staff, but
each time the severity of his injuries was overlooked or downplayed. Id.
Plaintiff says that his continued evaluation and treatment belies the notion
that his injuries were minor. Id. However, an x-ray showed no fractures in
Plaintiff’s hand. Id. He rejoins that on the basis of the x-ray results, medical
staff dismissed his complaints and allowed his injuries to heal, “thereby
concealing [them].” Id. Plaintiff asserts that after his transfer to the
Wisconsin Secure Program Facility on September 20, 2011, he was found to
be suffering pain resulting from deep tissue bruising and a stretched
median nerve. Id. at 8. Treatment for his pain is ongoing. Id.
On September 2, 2011, Plaintiff filed an offender complaint against
nurse Van Verkinter (“Van Verkinter”), alleging that the nurse refused him
treatment and aggressively manipulated his hands during evaluation. Id. at
7. Francois reviewed the complaint and returned it to Plaintiff, instructing
him to first attempt informal resolution of the problem. Id. at 7–8. When
Plaintiff told Francois that he had tried to address the matter with Schultz,
who was the segregation supervisor, she did not respond. Id. at 8.
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3.

PLAINTIFF’S CLAIMS
Plaintiff raises a litany of legal claims out of his factual allegations.

Id. at 9–11. To streamline the evaluation of the claims, the Court will identify
them and at the same time evaluate whether they can proceed.2
3.1

The Assault: Defendant Franke

First are the claims against Franke. Plaintiff contends that Franke
engaged in religious discrimination, in violation of Plaintiff’s free exercise
rights under the First Amendment, by purposefully handling the Ramadan
meals in an unsanitary fashion. Id. at 9. Plaintiff further alleges that Franke
assaulted him without provocation, thereby engaging in the use of
excessive force in violation of the Eighth Amendment. Id. He also claims
that the injury to his hand was an act of religious discrimination inasmuch
as it impeded his ability to perform his daily prayers. Id. Finally, Plaintiff
asserts that Franke’s actions violated his right to equal protection under the
Fourteenth Amendment. Id.
The Eighth Amendment claim may proceed, but the others may not.
Taking Plaintiff’s allegations as true, Franke’s unprovoked assault against
Plaintiff constituted excessive force in violation of the Eighth Amendment.
See Hudson v. McMillian, 503 U.S. 1, 7 (1992); Outlaw v. Newkirk, 259 F.3d 833,
837 (7th Cir. 2001).
However, Plaintiff’s allegations do not implicate the Free Exercise
Clause of the First Amendment. Franke may have dropped Ramadan meals

At the outset, the Court notes that Plaintiff makes claims against each
Defendant in both their individual and official capacities. The official-capacity
claims must be dismissed, as such a claim is in reality against the State itself, Monell
v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978), and neither the State
nor its officials acting in their official capacities are amenable to a damages suit
under Section 1983, Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
2

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on the floor, but they were bagged. Plaintiff offers no reason to believe that
the meals were actually sullied in any way; instead, he seems to make a
constitutional claim out of his annoyance at having to pick the meal up off
of the cell floor. Franke’s actions did not prevent or hinder Plaintiff from
eating his religious meal and therefore did not “plac[e] a substantial burden
on [plaintiff’s] religious practices.” See Thompson v. Holm, 809 F.3d 376, 379
(7th Cir. 2016); Thomas v. Review Bd., 450 U.S. 707, 717–18 (1981) (a
substantial burden must be so severe as to “put substantial pressure on an
adherent to modify his behavior and to violate his beliefs”).
Likewise, Plaintiff’s assertion that Franke acted with discriminatory
animus against Muslims is pure speculation. Thompson, 809 F.3d at 380 (a
plaintiff must show that the defendant personally and intentionally
discriminated on the basis of his religion). Franke said nothing suggesting
that his actions were premised on a dislike of the adherents of Islam, and
Plaintiff does not describe how other, non-Muslim inmates’ bagged meals
were distributed, so the mere fact that these meals were dropped on the
floor does not support an inference of discrimination. Similarly, there are
no allegations substantiating the idea that Franke smashed Plaintiff’s hand
because he was a Muslim. Instead, the only plausible view of the facts is
that the two men were having a heated argument that boiled over into
violence. Thus, the First Amendment claim cannot proceed.
Additionally, the Court must dismiss Plaintiff’s claim for denial of
equal protection. “The Equal Protection Clause of the Fourteenth
Amendment prohibits state action that discriminates on the basis of
membership in a protected class or irrationally targets an individual for
discriminatory treatment as a so-called ‘class of one.’” Reget v. City of La
Crosse, 595 F.3d 691, 695 (7th Cir. 2010). The standard for analyzing “class
Page 8 of 19

of one” claims is in flux, see Del Marcelle v. Brown County Corp., 680 F.3d 887
(7th Cir. 2012) (en banc), but “[a]t a minimum. . .[a plaintiff] must show that
she was intentionally treated differently from others similarly situated and
that there is no rational basis for the difference in treatment,” Billington v.
Vill. of Armington, 498 F. App’x 572, 574 (7th Cir. 2012); Vill. of Willowbrook
v. Olech, 528 U.S. 562, 563–64 (2000).
Here, Plaintiff does not identify whether his equal protection claim
is premised on his religion or is a “class of one” claim. Yet in either case,
Plaintiff has not identified how he was treated differently from any other
similarly situated inmate. See LaBella Winnetka, Inc. v. Vill. of Winnetka, 628
F.3d 937, 941–42 (7th Cir. 2010). As noted above, Plaintiff did not explain
how other inmates’ meals were handled differently, and his allegations
about Franke’s treatment of others’ meals actually undermines a claim of
disparate treatment.3 Thus, Plaintiff may proceed against Franke only on
the Eighth Amendment excessive force claim.
3.2

The Cover-Up: Defendants Campbell, Sgt. Francois,
Schultz, and ICE Francois

Next, Plaintiff alleges claims against the prison officials involved in
the alleged cover-up of Franke’s malfeasance. Plaintiff asserts that
Campbell’s refusal to investigate Plaintiff’s complaints about Franke’s
assault, in particular his refusal to take photographs of Plaintiff’s injuries,

Additionally, if the equal protection claim is premised on Plaintiff’s
religion, the claim likely fails under Conyers v. Abitz, 416 F.3d 580, 586 (7th Cir.
2005), which holds that where an inmate asserts a First Amendment free-exercise
claim and a Fourteenth Amendment equal protection claim based on the same
facts, the equal protection claim is duplicative. This is consistent with the Supreme
Court’s admonition that constitutional claims should be analyzed only under the
most relevant provision. See Graham v. Connor, 490 U.S. 386, 395 (1989).
3

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coupled

with

Campbell’s

punitive

and

unwarranted

back-of-cell

restriction, violated Plaintiff’s rights under the First Amendment,
constituted cruel and unusual punishment in violation of the Eighth
Amendment, and deprived him of due process and equal protection under
the Fourteenth Amendment. Id. Additionally, Plaintiff raises Fourteenth
Amendment due process and equal protection claims against Sgt. Francois
arising from the fact that Sgt. Francois knew about Franke’s conduct and
knew that Franke’s conduct report was fabricated, but did nothing. Id. at
10. Further, Plaintiff claims that Schultz violated his Fourteenth
Amendment due process and equal protection rights by siding against him
with respect to the conduct report, despite Plaintiff’s protestations about his
injuries and the officers’ campaign of concealment. Id.
For all these Defendants, Plaintiff’s equal protection claim cannot
proceed. As with the claim against Franke, here Plaintiff has not attempted
to explain how he was treated differently from any other similarly situated
inmate, a fundamental prerequisite to stating a claim for denial of equal
protection of the law. LaBella, 628 F.3d at 941–42; Olech, 528 U.S. at 564.4 His
conclusory, passing references to the Equal Protection Clause do not carry
him over even the low threshold required at screening.
Likewise, Plaintiff cannot maintain a due process claim against any
of these Defendants.5 First, his punishment was only a 21-day loss of

It is notable that Plaintiff does not suggest that these individuals acted on
the basis of his religion; his only claim is that they tried to cover up Franke’s
conduct out of an intrinsic preference for correctional officers over inmates.
5Plaintiff does not say whether his “due process” claim arises from
procedural or substantive due process. See Zinermon v. Burch, 494 U.S. 113, 125
(1990). Yet because his claims concern alleged failures to investigate and
misconduct related to his disciplinary hearing, and because Plaintiff identifies no
4

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recreation privileges. Such a deprivation does not implicate any of
Plaintiff’s protected liberty interests, and so no process was due him.
Simpson v. Douma, No. 04–C–298–C, 2004 WL 1563284, at *2–3 (W.D. Wis.
June 30, 2004); Sandin v. Conner, 515 U.S. 472, 484 (1995) (to support a due
process claim, a deprivation must represent an “atypical and significant
hardship” in relation to ordinary prison life); Long v. Hanks, 78 F.3d 586 (7th
Cir. 1996). Indeed, Plaintiff concedes that he received an exceedingly light
punishment in relation to the maximum allowable punishment of six
months’ solitary confinement. (Docket #1 at 7).
Second, to the extent Plaintiff alleges that correctional officers lied
about his conduct or were complicit in Franke’s false conduct report, it is
indisputable that lying is not itself a constitutional violation. Even if a guard
prepares a false conduct report that ultimately results in sanctions against
the inmate, the inmate has no claim if he was afforded the procedural due
process protections outlined in Wolff v. McDonnell, 418 U.S. 539, 558 (1974).
Hanrahan v. Lane, 747 F.2d 1137, 1140–41 (7th Cir. 1984). Here, Plaintiff’s
allegations show that such protections were afforded to him. Moreover,
because Plaintiff was given notice and a hearing at which to challenge the
sufficiency of the evidence (and, by extension, the investigation itself), his
procedural due process rights were not infringed by Campbell’s alleged
failure to perform a thorough investigation. Id.
Finally, although procedural due process commands that a prisoner
be heard by an impartial decision-maker, Wolff, 418 U.S. at 566, Plaintiff has
offered no more than conjecture to support the accusation that Schultz was

fundamental right implicated by these facts, the Court assumes that the claims are
solely directed at violations of procedural due process. Id.

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biased. The standard for asserting a claim of bias against a prison hearing
officer is high, Hoskins v. McBride, 13 F. App’x 365, 369 (7th Cir. 2001), and
Plaintiff’s allegations do not meet the mark.
As to the separate claims against Campbell, Plaintiff may proceed on
a First Amendment retaliation claim based on Campbell’s purported
retributory back-of-cell restriction imposed in light of Plaintiff’s complaints
about the Franke assault. See Bridges v. Gilbert, 557 F.3d 541, 551–52 (7th Cir.
2009); Pearson v. Welborn, 471 F.3d 732, 740–41 (7th Cir. 2006). However,
Plaintiff may not proceed on a First Amendment claim of denial of access
to courts. Plaintiff complains that Campbell did not take photos of his
injury, but at this juncture, it is only speculation that Campbell’s refusal to
investigate will prejudice some nonfrivolous legal claim of Plaintiff’s.
Bridges, 557 F.3d at 553; Christopher v. Harbury, 536 U.S. 403, 414 (2002).
Moreover, it does not appear that Campbell’s refusal to perform this
portion of the investigation would make out a claim in any event, since
Plaintiff was present and has firsthand knowledge of the relevant events.
See Thomson v. Boggs, 33 F.3d 847, 852 (7th Cir. 1994).
Similarly, Plaintiff may not proceed against Campbell on an Eighth
Amendment claim relating to the thirty-day back-of-cell restriction, as such
a restriction is not sufficiently severe to be called cruel and unusual
punishment. See Caldwell v. Miller, 790 F.2d 589, 600–01 (7th Cir. 1986)
(conditions are only actionable as cruel and unusual where “they involve
the unnecessary and wanton infliction of pain, are grossly disproportionate
to the severity of the crime for which an inmate was imprisoned, or are
totally without penological justification”); Rhodes v. Chapman, 452 U.S. 337,
346 (1981) (prisoners are entitled under the Eighth Amendment to “the
minimal civilized measure of life’s necessities”); Adams v. Kincheloe, 743 F.
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Supp. 1393, 1398 (E.D. Wash. 1990) (observing that while being forced to
stand at the back of one’s cell while one’s food is dropped through the cell
door is not pleasant or dignified, it does not rise to the level of an Eighth
Amendment violation).
Finally, there is ICE Francois. Plaintiff accuses her of trying to stifle
his ability to grieve about Franke’s assault. (Docket #1 at 10). As explained
above, Plaintiff believes he got the run-around from her when she said that
he would need to try informal resolution before filing a complaint, knowing
that she would reject a refiled complaint as untimely if he took the time to
engage in those preliminary efforts. Id. Further, he states that she
unreasonably rejected his complaint about his medical care despite
receiving evidence of his attempts at informal resolution. Id. at 11. This
conduct, Plaintiff alleges, violated his First Amendment right to free speech
and his Fourteenth Amendment due process and equal protection rights.
Id.
Normally, those who review inmate complaints are not liable simply
for denying a prisoner the relief he seeks. See Ali v. West, Case No. 16–CV–
1518–JPS, 2017 WL 176304, at *5 (E.D. Wis. Jan. 17, 2017). Certainly, no
prisoner has a liberty interest in obtaining satisfactory relief from a
complaint examiner. Boribune v. Berge, No. 04–C–0015–C, 2005 WL 840367,
at *3 (W.D. Wis. Apr. 11, 2005). However, they can be liable if ignoring the
prisoner’s grievances rises to the level of deliberate indifference to
sufficiently serious, ongoing medical needs or conditions of confinement.
See Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009); Greeno v. Daley, 414
F.3d 645, 655–56 (7th Cir. 2005).
No such circumstance arose here, however. Plaintiff’s complaint is
merely that the ICE Francois’ investigation did not go as he desired. Thus,
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Plaintiff has no due process claim. See Strong v. David, 297 F.3d 646, 650 (7th
Cir. 2002) (“As long as [prison officials] did not deprive Strong of his
opportunity to contest the merits of the charge before the grievance board
or sabotage his chance to obtain redress in court, the defendants’
uncooperative approach is not an independent constitutional tort; there is
no duty to assist in an effort to obtain private redress.”); Meyer v. Teslik, No.
05-C-269 C, 2005 WL 1463528, at *3 (W.D. Wis. June 21, 2005) (“Plaintiff does
not have a liberty interest in mere procedural guidelines governing inmate
complaints.”). Further, his equal protection claim against her fails for the
same lack of disparate treatment as it did with respect to Campbell, Sgt.
Francois, and Schultz. LaBella, 628 F.3d at 941–42.
Finally, Plaintiff’s First Amendment claim against ICE Francois must
be dismissed. She has not impeded his ability to exhaust his prison
administrative remedies, as he was able to appeal her rejection or other
disposition of his grievances. Nor is there any allegation that she attempted
to (or succeeded) in impeding his access to the courts. Vasquez v. Hernandez,
60 F.3d 325, 329 (7th Cir. 1995); Bridges, 557 F.3d at 555 (“Because [plaintiff]
is currently exercising his right to petition the government for redress of
grievances through this lawsuit, he has not been harmed.”). Thus, all the
claims against her must be dismissed.
3.3

The Medical Defendants: Van Verkinter, Tremel, and Jane
Doe #1

Plaintiff’s last batch of claims relates to his medical care. As to Van
Verkinter, Plaintiff claims that the nurse acted with deliberate indifference
to his serious medical needs, in violation of the Eighth Amendment, by
failing to appreciate the severity of his injuries and failing to order an MRI
to better assess those injuries, as well as ignoring his complaints of pain, all
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of which led the otherwise preventable or curable injuries to worsen into a
permanent and painful condition. Id. at 12. Plaintiff raises an identical claim
against Tremel and against previously unmentioned defendant, nurse Jane
Doe #1. Id.
The deliberate indifference claim may proceed against Van Verkinter
and Tremel. While simply failing to order an MRI as Plaintiff desired is not
deliberate indifference, the allegations that they ignored or downplayed his
injuries and pain suffice at the screening stage. See Gayton v. McCoy, 593
F.3d 610, 620 (7th Cir. 2010); Gamble, 429 U.S. at 107 (“[T]he question
whether an X-ray or additional diagnostic techniques or forms of treatment
is indicated is a classic example of a matter for medical judgment.”).
However, there are no factual allegations whatsoever about the Doe nurse
beyond the bare statement of the claim against her, and so there is no basis
on which to conclude that she was deliberately indifferent to Plaintiff’s
medical needs or that she had sufficient personal involvement in the
relevant events to be liable. See Sanville v. McCaughtry, 266 F.3d 724, 740 (7th
Cir. 2001). She must, therefore, be dismissed from the case.
3.4

Conclusion

For the reasons stated above, Plaintiff will be permitted to proceed
on the following claims: (1) use of excessive force, in violation of the Eighth
Amendment, against Defendant Franke; (2) First Amendment retaliation
against Defendant Campbell; and (3) deliberate indifference to his serious
medical needs, in violation of the Eighth Amendment, against Defendants
Tremel and Van Verkinter. 28 U.S.C. § 1915A(b).
4.

MOTION FOR APPOINTMENT OF COUNSEL
The Court closes by addressing Plaintiff’s pending request for

appointment of counsel. (Docket #8). As a civil litigant, Plaintiff has no
Page 15 of 19

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 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 omitted). 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.” Id.
Plaintiff’s request must be denied because he has not presented
evidence showing that he cannot litigate this matter competently on his
own. First, Plaintiff’s suggestion that he should be appointed counsel
simply because he has no legal training and limited access to the law library,
(Docket #8 at 1), runs directly afoul of the admonition in Pruitt that a better
chance of success is no reason to appoint counsel. As a litigant in this Court,
Plaintiff is under an obligation to familiarize himself with the relevant legal
standards and rules. Faced with a dearth of competent counsel willing to
take on prisoner litigation, the Court cannot appoint counsel without some
good reason that the prisoner is actually incapable of prosecuting his own
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case. Ignorance of the law is not a qualifying reason. Indeed, despite his
claimed lack of capacity, Plaintiff’s submissions thus far show that he can
cogently present his factual and legal allegations.
Second, contrary to Plaintiff’s belief, the mere fact of his
incarceration has never been a reason militating in favor of appointing
counsel. Id. Third, the Court finds unavailing Plaintiff’s cursory claim that
the case is too complex for him to litigate. Id. The case involves
straightforward facts, and even the medical issues involved are not beyond
the grasp of a layperson. See Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir.
2014). Finally, the Court is not convinced that the long-distant prospect of
trial and cross-examination of witnesses, (Docket #8 at 1), warrants the
appointment of counsel at this very early stage in the case. Thus, the Court
will deny the motion at this time.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that Defendants Sgt. Francois, Capt.
Schultz, Catherine Francois, and R.N. Jane Doe #1 be and the same are
hereby DISMISSED from this action;
IT IS FURTHER ORDERED that all claims against the remaining
Defendants in their official capacities be and the same are hereby
DISMISSED;
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 the remaining
Defendants;
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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 complaint within sixty
(60) days of receiving electronic notice of this order;
IT IS FURTHER ORDERED that Plaintiff’s motion for the
appointment of counsel (Docket #8) be and the same is hereby DENIED
without prejudice;
IT IS FURTHER ORDERED that the agency having custody of the
prisoner shall collect from his institution trust account the 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 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 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 a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
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 and, therefore, if Plaintiff is no longer
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incarcerated at any of these institutions, 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
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.
Dated at Milwaukee, Wisconsin, this 5th day of September, 2017.
BY THE COURT:

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

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