Mitchell v Foster et al

Filing 13

ORDER signed by Judge Pamela Pepper on 6/19/2018. 2 Plaintiff's motion for leave to proceed without prepayment of the filing fee GRANTED; agency having custody of plaintiff to collect $332 balance of filing fee from plaintiff's priso n trust account under 28 USC §1915(b)(2). Defendants Nancy White, Brian Foster, Kyle Tritt DISMISSED. Remaining defendants to file responsive pleading within 60 days. Parties may not begin discovery until the court has entered scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Ivan Mitchell and Warden at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
IVAN MITCHELL,
Plaintiff,
v.

Case No. 17-cv-1167-pp

BRIAN FOSTER, ANN SCARPITA,
NICOLE KAMPHUIS, DONNA LARSON,
LORI DOEHLING, EMILY STADTMUELLER,
NANCY WHITE, CPT. KYLE TRITT,
and JAMES MUENCHOW,
Defendants.
______________________________________________________________________________
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED
WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING THE COMPLAINT
______________________________________________________________________________
The plaintiff is a Wisconsin state prisoner incarcerated at Waupun
Correctional Institution (WCI), and is representing himself. He filed a complaint
in the Western District of Wisconsin, alleging that the defendants were
deliberately indifferent to his serious medical need in violation of the Eighth
Amendment, and raising a state law tort claim. Dkt. No. 1. This order resolves
the plaintiff’s motion for leave to proceed without prepaying the filing fee, dkt.
no. 2, and screens the complaint.
I.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 2)
The Prison Litigation Reform Act (“PLRA”) applies to this case, because

the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915.
The law allows a court to give an incarcerated plaintiff the ability to proceed
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with his lawsuit without pre-paying the filing fee, as long as he meets certain
conditions. Id. One of those conditions is a requirement that the plaintiff must
pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays that
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.
On August 15, 2017, Magistrate Judge Oppeneer ordered the plaintiff to
pay an initial partial filing fee of $18.00; the court received that payment on
August 21, 2017. Therefore, the court will grant the plaintiff’s motion for leave
to proceed without prepayment of the filing fee and will allow the plaintiff to
pay the balance of the $350 filing fee over time from his prisoner account, as
described at the end of the this order.
II.

SCREENING OF THE PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The PLRA 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 must dismiss a complaint,
or part of it, if a 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).
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895,
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900 (7th Cir. 1997). A court may 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. “Malicious,” although sometimes
treated as a synonym for “frivolous,” “is more usefully construed as intended to
harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations
omitted).
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). It is not
necessary for a plaintiff to plead specific facts and 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)). A complaint that offers mere “labels
and conclusions,” however, 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). 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. (citing
Twombly, 550 U.S. at 556). A complaint’s allegations “must be enough to raise
a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation
omitted).
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In considering whether a complaint states a claim, courts follow the twostep process in Twombly. First, the court “identif[ies] pleadings that, because
they are no more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual
allegations. Id. If there are well-pleaded factual allegations, the court then must
“assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Id. Finally, a court is obliged to give a pro se plaintiff’s
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)).
B.

The Plaintiff’s Allegations

The plaintiff alleges that on September 2, 2015, he was taken to the
University of Wisconsin podiatry clinic for a follow-up on his plantar fasciitis.
Dkt. No. 1 at 3. The podiatrist examined him, and recommended several forms
of treatment—application of a gel four times a day for six months, radiographic
images of his ankle, daily wear of orthotics/ankle braces, referral for a consult
regarding his left ankle, and “a new pair of high top athletic style shoes as
current pair are worn.” Id. at 3-4. Within two weeks of his podiatry evaluation,
a nurse practitioner at WCI forwarded forwarded to defendant Ann Scarpita, a
special needs coordinator at WCI, a September 8, 2015 request for a new pair
of shoes. Id. Scarpita responded that the plaintiff was “supplied with boots
from institution with high top for support,” and that inmates could purchase
high top tennis shoes from an outside vendor through a catalog. Id.
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A couple of months later, on November 14, 2015, the plaintiff submitted
a “reasonable modification/accommodation request” to defendant Nicole
Kamphuis, an accommodation coordinator at WCI. Id. at 5. He asked to be able
to order shoes from an outside vendor, saying that the shoes offered in the
canteen catalog did not meet his medical needs (high tops, size 12, EEEE
width, with shock absorption capability). Id. Kamphuis responded that this
wasn’t “an ADA issue,” and that he should contact special needs or the Health
Services Unit (HSU). Id.
Another few months went by. In late January 2016, the plaintiff sent an
a request to HSU, telling defendant Larson (the interim manager of the HSU)
about the podiatry clinic’s treatment recommendations, and explaining that
they had not been addressed. Id. at 6. He asked to see Larson to talk about the
podiatrist’s recommendations. Id. The next day, he received a response from a
nurse (who claimed to be acting at the direction of the HSU manager,
defendant Doehling), saying that Larson would schedule an appointment for
him if she saw a need, “only ortho appointment scheduled next month.” Id.
In mid-March 2016, the plaintiff wrote to defendant Foster, the warden,
asking him to intervene in what the plaintiff characterized as the intentional
denial of treatment by the HSU. Id. Defendant Stadtmueller, another HSU
manager, responded, noting that the plaintiff had “seen physio” on March 9,
2016, and been fitted with appropriate shoes and inserts. Id. Stadtmueller told
the plaintiff that the items were on order, and that he would be notified when

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they came in. She also told him to make sure to use his ankle and knee braces
to help with any discomfort. Id.
It appears that at this point the plaintiff filed a grievance. Id. at 7.
Defendant Muenchow—an inmate complaint examiner (ICE) and a member of
the special needs committee—recommended that the grievance be dismissed.
Id. Muenchow indicated that he did not have any special knowledge, and
concluded that it appeared that the plaintiff’s medical concerns had been
addressed. Id. Foster followed that recommendation, and dismissed the
grievance. Id.
In early April 2016, the plaintiff wrote the HSU with a request for a
special needs review. Id. Stadtmueller responded, telling the plaintiff that the
process for ordering shoes had changed; HSU now ordered shoes only “when
deemed medically necessary by the foot specialist.” Id. She told the plaintiff,
“We cannot grant your request to order your own shoes.” Id.
Later in April, the plaintiff filed a request with Kamphuis, asking for a
reasonable accommodation. Id. Kamphuis concluded that the plaintiff did not
have a disability. Id.
C.

Legal Analysis

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. Cty. of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384
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F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640
(1980). Liability under §1983 is predicated on a defendant's personal
involvement in the constitutional deprivation. Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995). “An official satisfies the personal [involvement] . . . if
the conduct causing the constitutional deprivation occurs at [his] direction or
with [his] knowledge and consent.” Id. (quoting Crowder v. Lash, 687 F.2d 996,
1005 (7th Cir. 1982)). Likewise, to impose liability on a defendant, that
defendant “must know about the conduct and facilitate it, approve it, condone
it, or turn a blind eye.” Id. (quoting Jones v. City of Chi., 856 F.2d 985, 992
(7th Cir. 1988)).
The plaintiff alleges that nine defendants—Foster, Scarpita, Kamphuis,
Larson, Doehling, Stadtmueller and Muenchow, along with Assistant HSU
manager Nancy White and correctional officer Kyle Tritt—were deliberately
indifferent to his serious medical needs. The Eighth Amendment imposes a
duty on prison officials to provide humane conditions of confinement by
ensuring that inmates receive adequate food, clothing, shelter, and medical
care. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials violate the
Eighth Amendment when they show “deliberate indifference” to a substantial
risk of serious harm to inmate health or safety. Id. at 834–35. A prison official
is deliberately indifferent when he or she knows of a substantial risk of serious
harm and either acts, or fails to act, in disregard of that risk. Roe v. Elyea, 631
F.3d 843, 857 (7th Cir. 2011). An inmate's condition is sufficiently “serious” if

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it “has been diagnosed by a physician as mandating treatment . . . .” Id.
(quoting Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)).
Chronic plantar fasciitis, and the pain associated with it, can rise to the
level of a serious medical need for purposes of an Eighth Amendment deliberate
indifference claim. See Burgess v. Eckstein, Case No. 16-cv-1147, 2016 WL
6108982, at *3 (E.D. Wis. Oct. 19, 2016) (permitting prisoner to proceed on
deliberate indifference claim based on failure to treat plantar fasciitis). At this
early stage of the case, the court will assume that the plaintiff’s plantar fasciitis
and the pain he experienced constituted a serious medical need.
The plaintiff alleges that Scarpita, Kamphuis, Larson and Doehling knew
about the podiatrist’s recommendations, but refused to follow them. At this
early stage, the court concludes that the plaintiff has alleged sufficient facts to
allow him to proceed on a deliberate indifference claim against these four
defendants.
As for Foster, the plaintiff indicates that when he complained to Foster,
he actually got a response—Stadtmueller responded by noting that he’d been
seen a few days before and that the institution had ordered the necessary
shoes and inserts. The plaintiff has not stated sufficient facts to allow him to
proceed on a deliberate indifference claim against Foster.
Stadtmueller originally responded to the plaintiff’s complaints by saying
that the institution had ordered shoes and inserts for him. In response to the
plaintiff’s repeated inquiry, however, she told him that the institution would

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not order him shoes due to a policy change. The court will allow the plaintiff to
proceed on a deliberate indifference claim against Stadtmueller.
The plaintiff appears to allege that because Muenchow was a member of
the “special needs committee,” Muenchow should have authorized him to
purchase shoes from an outside vendor. It is a close call, but at this stage, the
court will allow the plaintiff to proceed on a deliberate indifference claim
against Muenchow.
The plaintiff does not make any specific allegations against defendants
White and Tritt. He does not allege that they knew about the podiatrist’s
orders, or that they had any role in preventing him from getting treatment. It is
not clear why the plaintiff has included these two individuals as defendants.
The court will dismiss White and Tritt from the lawsuit.
At the end of his complaint, the plaintiff states that he filed a timely
notice of claim with the Wisconsin Attorney General “regarding his state tort
claims in this action.” Dkt. No. 1 at 12. The plaintiff does not state what tort he
believes the plaintiffs committed. But, because he alleges that he has filed a
notice with the state, the court will—for now—assume that the plaintiff’s state
law tort claim arises out of these same factual allegations, and will allow him to
proceed on a state law claim against the defendants. See 28 U.S.C. §1367.
Finally, the court is aware that the plaintiff has written to the court,
asking why it has taken so long for the court to screen his complaint. The court
does not have an excuse—only an explanation. The court’s case load is heavy,
in part due to the fact that the district has been short one judge for almost two
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years. This has caused the court to be behind on many cases, a fact it regrets.
The court hopes this order will move the plaintiff’s case along.
III.

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 Brian Foster, Nancy White and Cpt. Kyle Tritt
are DISMISSED as defendants.
The court ORDERS that, under an informal service agreement between
the Wisconsin Department of Justice and this court, copies of plaintiff’s
complaint and this order are being electronically sent to the Wisconsin
Department of Justice for service on defendants Scarpita, Kamphuis, Larson,
Doehling, Stadtmueller and Muenchow.
The court ORDERS that, under the informal service agreement between
the Wisconsin Department of Justice and this court, defendants Scarpita,
Kamphuis, Larson, Doehling, Stadtmueller and Muenchow 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 $332.00 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).
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The agency shall clearly identify the payments by the case name and number
assigned. 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 balance, to the receiving institution.
The court will send a copy of this order to the warden of Waupun
Correctional Institution.
The court ORDERS that the parties shall 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,
who will scan and e-mail documents to the Court.1 If the plaintiff is no longer
incarcerated at a Prisoner E-Filing institution, the court will require him 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
The court advises the plaintiff that if he does not file documents or take
other court-ordered actions by the deadlines the court sets, the court may
dismiss the case for failure to prosecute.
The Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
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The parties shall 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, which could affect the legal rights of the parties.
Dated in Milwaukee, Wisconsin this 19th day of June, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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