Lampley v. Latour et al

Filing 17

ORDER signed by Judge Pamela Pepper on 3/27/2018. 2 Plaintiff's motion to proceed without prepayment of the filing fee GRANTED; agency having custody of the plaintiff shall collect $350 filing fee from plaintiff's prison trust accoun t under 28 USC §1915(b)(2). 5 Plaintiff's motion for extension of time to submit trust account statement DENIED as moot. 11 Plaintiff's motion to appoint counsel DENIED without prejudice. Defendants Rosmerinouski and Schwartz-Osca r DISMISSED. Defendants Latour, Johnson and Lemmons to file responsive pleading to complaint within 60 days. Parties may not begin discovery until the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Steven Lampley-with Guide for Prisoners Representing Themselves and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
STEVEN LAMPLEY,
Plaintiff,
v.

Case No. 17-cv-1132-pp

OFFICER LATOUR,
DR. SCHWARTZ-OSCAR,
SERGEANT ROSMERINOUSKI,
KATHY LEMMONS, AND
CO JOHNSON,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING
COMPLAINT UNDER 28 U.S.C. §1915A, DENYING AS MOOT PLAINTIFF’S
MOTION FOR EXTENSION OF TIME TO SUBMIT TRUST ACCOUNT
STATEMENT (DKT. NO. 5), AND DENYING PLAINTIFF’S MOTION TO
APPOINT COUNSEL (DKT. NO. 11)
______________________________________________________________________________
Plaintiff Steven Lampley is a Wisconsin state prisoner representing
himself. He filed a civil rights complaint alleging that the defendants violated
his constitutional rights related to a suicide attempt. Dkt. No. 1. This order
resolves the plaintiff’s motion for leave to proceed without prepayment of the
filing fee, screens the plaintiff’s complaint, denies as moot the plaintiff’s motion
for extension of time to submit his institution trust account statement and
denies his motion to appoint counsel.
A.

Motion to Proceed Without Prepaying the Filing Fee (Dkt. No. 2)
The Prison Litigation Reform Act applies to this case because the plaintiff

is incarcerated. 28 U.S.C. §1915. The law allows a court to give an incarcerated
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plaintiff the ability to proceed with his lawsuit without pre-paying the civil case
filing fee, as long as he meets certain conditions. Id. One of those conditions is
a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C.
§1915(b). Once the plaintiff pays the initial partial filing fee, the court may
allow the plaintiff to pay the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
The plaintiff submitted his trust account statement on August 31, 2017.
Dkt. No. 7. On September 1, 2017, Magistrate Judge Duffin issued an order
finding that the plaintiff lacked the funds to pay an initial partial filing fee, and
waiving that fee. Dkt. No. 8; 28 U.S.C. §1915(b)(4). Judge Duffin’s September 1,
2017 order also gave the plaintiff an opportunity to dismiss the case
voluntarily, so that he could avoid incurring a “strike” for filing a frivolous or
unfounded lawsuit. Dkt. No. 8. The plaintiff has not moved to dismiss the case.
Because the plaintiff did not consent to the magistrate judge handling
this case, the clerk’s office reassigned it to this court on September 8, 2017.
The court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filling fee and will allow the plaintiff to pay the $350.00 filing
fee over time from his prisoner account, as described at the end of this order.
B.

Screening of the Plaintiff’s Complaint
1.

Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts 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). A court
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may dismiss a case, or part of it, if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915(e)(2)(B).
To state a claim under the federal notice pleading system, a plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “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)). “Labels and
conclusions” or a “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).
The factual content of a complaint must allow a court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Indeed, allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis in Twombly to determine
whether a complaint states a claim. Id. at 679. First, a court determines
whether the plaintiff’s legal conclusions are supported by factual allegations.
Id. Legal conclusions not supported by facts “are not entitled to the assumption

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of truth.” Id. Second, a court determines whether the well-pleaded factual
allegations “plausibly give rise to an entitlement to relief.” Id.
To state a claim that a state actor violated his constitutional rights 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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)
(citing Kramer v. Vill. of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004));
see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). A court gives 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.

Facts Alleged in the Complaint

The plaintiff is incarcerated at the Green Bay Correctional Institution
(GBCI). Dkt. No. 1 at 1. The institution classifies him as having a “serious
mental illness,” and he has been in segregation for almost four years. Id. at 2.
On the morning of June 4, 2017, the plaintiff was moved from the “500
wing”—which is a “quiet wing” at GBCI—to the “200 wing,” which is a “very bad
and noisy wing.” Id. Defendants CO Johnson and CO Latour escorted the
plaintiff to the 200 wing. Id. The plaintiff told them that he didn’t want to move
to the 200 wing because the “noisy dudes and crank inmates” are on the wing,
but Johnson and Latour took him there anyway. Id. at 3.

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When Johnson and Latour placed the plaintiff in Cell 231, he told them
that he was feeling suicidal. Id. The plaintiff asked to see a supervisor and a
“PSU” (presumably, psychological services unit) staff member right away so he
could be placed on “observation,” to prevent him from harming himself. Id. The
plaintiff attempted to hold his cell’s “trap door” open until Johnson and Latour
called the segregation supervisor, defendant Rosmerinouski. Id. Johnson and
Latour assured the plaintiff that if they let him close the trap door they would
tell Rosmerinouski to talk with him. Id. Johnson also said that she would tell
defendant Dr. Schwartz-Oscar from the PSU to see the plaintiff. Id. at 3-4.
Next, the plaintiff states, “long story short, no one came to see me that
day on 6-4-17 or on 6-6-17.” Id. at 4. (The plaintiff does not state whether
anyone saw him on June 5, 2017.)
The morning of June 4, 2017, after the plaintiff complained about feeling
suicidal, Latour distributed nail clippers to inmates. Id. Latour never returned
to retrieve the nail clippers from the plaintiff, which “he was suppose[d] to do,
because we are not as inmates in segregation allowed to keep sharp objects in
our cells because we may harm ourselves.” Id.
On June 6, 2017, the plaintiff informed defendant Nurse Kathy Lemmons
that he was feeling suicidal. Id. She told the plaintiff that she would tell PSU
about his issue. Id. No one came to see the plaintiff after he complained to
Nurse Lemmons. Id. Staff ignored him all day on June 4 and June 6, 2017. Id.
(Again, the plaintiff does not mention what, if anything, took place on June 5,
2017.)
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At about 7:30 p.m. on June 6, 2017, the plaintiff became fed up with
staff ignoring him and he remembered that he still had the nail clippers from
Latour. Id. He altered the clippers to harm himself and then cut his wrists,
arms, chest and forehead. Id. at 4-5. Officer Heffernan, who is not a defendant,
found the plaintiff cutting himself and asked him to stop, but the plaintiff
refused. Id. at 5. Officer Heffernan sprayed pepper spray into the plaintiff’s cell
and called for a supervisor. Id. The plaintiff was then handcuffed and escorted
to observation. Id.
For relief, the plaintiff seeks monetary damages and injunctive relief. Id.
at 6.
3.

Discussion

The plaintiff alleges that even though he told the defendants that he was
suicidal, they took no action, which led to his suicide attempt. This sounds like
a claim of deliberate indifference to serious medical need, in violation of the
Eighth Amendment
The Eighth Amendment protects inmates from “a lack of medical care
that ‘may result in pain and suffering which no one suggests would serve any
penological purpose.’” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011)
(quoting Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.
2009); and Estelle, 429 U.S. at 103). A prison staff member violates the Eighth
Amendment if he or she is “deliberately indifferent to prisoners’ serious medical
needs.” Id. (quoting Estelle, 429 U.S. at 104)). A prisoner who is asserting
deliberate indifference, or deficient medical care, must show two things: “1) an
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objectively serious medical condition; and 2) an official’s deliberate indifference
to that condition.” Id. (citing Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir.
2006)). “Deliberate indifference” is subjective—“a plaintiff must show that the
defendant ‘acted with a sufficiently culpable state of mind,’ something akin to
recklessness.” Id. at 751 (quoting Johnson, 444 F.3d at 585)). A prison official
has that culpable state of mind when he or she “knows of a substantial risk of
harm to an inmate and either acts or fails to act in disregard of that risk.” Id.
(citing Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)). The prisoner does not
need to show that the prison official intended or tried to cause whatever harm
occurred, or that the prison official deliberately ignored him. Id. (citations
omitted).
The court finds that, at this early stage, the plaintiff has alleged
sufficient facts to allow him to proceed on an Eighth Amendment deliberate
indifference claim against defendants Latour, Johnson and Lemmons. The
Seventh Circuit has held more than once that the risk of suicide is a serious
condition. See, e.g., Estate of Miller, ex rel. Bertram v. Tobiasz, 680 F.3d 984,
989 (7th Cir. 2012). The plaintiff has alleged that he told both Johnson and
Latour that he was feeling suicidal, and that while they assured him they
would have someone come to see him, no one ever did. He also alleges that,
despite having told Latour he was suicidal, Latour gave him nail clippers, and
did not come to collect them. Finally, he alleges that he told Lemmons that he
was feeling suicidal; again, she said she would have someone see him, but no
one ever did.
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The plaintiff has not alleged sufficient facts for the court to allow him to
proceed on deliberate indifference claims against Dr. Schwartz-Oscar or
Sergeant Rosmerinouski. The plaintiff does not allege that these defendants
knew he was suicidal. While he says that Johnson and Latour told the plaintiff
that they would notify Rosmerinouski, he does not say whether they did so. It
appears that they may not have notified Rosmerinouski, given that no one
followed up with the plaintiff. The same is true of Dr. Schwartz-Oscar—
although Johnson told the plaintiff that she would tell Dr. Schwartz-Oscar that
the plaintiff was suicidal, the plaintiff does not state that she did so.
A state actor is liable for his or her own misdeeds under §1983, but not
for anyone else’s. Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). A
plaintiff must allege sufficient facts to show that a defendant was personally
responsible for the deprivation of his constitutional rights in order to proceed
against that defendant under §1983. Gentry v. Duckworth, 65 F.3d 555, 561
(7th Cir. 1995) (citations omitted). The plaintiff has not alleged sufficient facts
to show that Schwartz-Oscar or Rosmerinouski were personally liable for
deliberate indifference to his serious medical needs, and the court will dismiss
them as defendants.
C.

Plaintiff’s Motion for an Extension of Time to Submit Trust Account
Statement (Dkt. No. 5)
On August 29, 2017, the plaintiff asked the court to extend the time for

him to provide his trust account statement. Dkt. No. 5. The court received the
trust account statement two days later, so there is no need for the court to
extend the time. The court will deny this motion as moot.
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D.

Plaintiff’s Motion to Appoint Counsel (Dkt. No. 11)
The plaintiff has filed a letter asking if the court or the state can provide

him with an attorney to represent him in this case. Dkt. No. 11. In a civil case,
the court has discretion to decide whether to recruit a lawyer for someone who
cannot afford one. Navejar v. Iyiola, 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). First, however, the person has to make a reasonable effort to
hire private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.
2007). After the plaintiff makes that reasonable attempt to hire counsel, the
court then must decide “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, 503 F.3d at 655). To decide
that, the court looks, not only at the plaintiff’s ability to try his case, but also
at his ability to perform other “tasks that normally attend litigation,” such as
“evidence gathering” and “preparing and responding to motions.” Id.
The plaintiff does not state that he tried to find an attorney on his own.
That means that he has not satisfied that initial requirement of making a
reasonable effort to find an attorney. He should contact at least three
attorneys, and ask if they will represent him. If at least three attorneys turn the
plaintiff down, or don’t respond within a reasonable time, the plaintiff will have
met the first requirement under Pruitt.
Even if the plaintiff had satisfied the initial requirement, the court would
not grant his motion at this point. The plaintiff has filed a detailed complaint
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explaining his claim. It is clear, coherent, easy to read and easy for the court to
understand. Despite the plaintiff’s assertion in the complaint that he has a
learning disability (dkt. no. 1 at 2), the plaintiff appears to the court to be quite
competent to represent himself at this stage in the proceedings. There is
nothing further for the plaintiff to do right now but wait for the defendants to
answer the complaint, and for the court to set a scheduling order. After that,
the plaintiff may ask the defendants for documents and other information. If
things get so complicated that the plaintiff cannot represent himself, he can file
another motion asking the court to appoint counsel.
To help the plaintiff, the court will send along with this order a guide for
prisoners representing themselves.
E.

Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 2
The court DENIES AS MOOT the plaintiff’s motion for extension of time
to submit trust account statement. Dkt. No. 5
The court DENIES WITHOUT PREJUDICE the plaintiff’s motion to
appoint counsel. Dkt. No. 11.
The court will mail the plaintiff a pro se guide, Answers to Prisoner
Litigants Common Questions, along with this order.
The court DISMISSES defendants Schwartz-Oscar and Rosmerinouski.
The court ORDERS that, under an informal service agreement between
the Wisconsin Department of Justice and this court, copies of plaintiff’s
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complaint and this order are being electronically sent to the Wisconsin
Department of Justice for service on the state defendants.
The court ORDERS that, under the informal service agreement between
the Wisconsin Department of Justice and this court, defendants Latour,
Johnson and Lemmons 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 $350.00 balance of the filing fee
by collecting monthly payments from the plaintiff’s prison trust account in an
amount equal to 20% of the preceding month’s income credited to the plaintiff’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 the
plaintiff's remaining account 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 discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that, under the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
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who will scan and e-mail documents to the court. If the plaintiff is no longer
incarcerated at a Prisoner E-Filing institution, he must 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
The court advises the plaintiff that if he does not timely file documents or
take other court-ordered actions by the deadlines the court sets, the court
could dismiss his case for failure to prosecute. 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 in Milwaukee, Wisconsin this 27th day of March, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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