Mitchell v Foster et al

Filing 21

ORDER signed by Judge Pamela Pepper on 12/4/2018 DENYING 16 Plaintiff's Motion to Amend Complaint. (cc: all counsel, via mail to Ivan Mitchell at Waupun Correctional Institution) (cb)

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

Case No. 17-cv-1167-pp

ANA SCARPITA, NICOLE KAMPHUIS,
DONNA LARSON, LORI DOEHLING,
EMILY STADTMUELLER, and
JAMES MUENCHOW,
Defendants.
______________________________________________________________________________
ORDER DENYING MOTION TO AMEND COMPLAINT (DKT. NO. 16)
______________________________________________________________________________
The plaintiff is a Wisconsin state prisoner representing himself. The court
screened the original complaint and allowed the plaintiff to proceed on Eighth
Amendment deliberate indifference to a serious medical need and state law
claims related to the treatment of his plantar fasciitis. Dkt. No. 13. The plaintiff
has filed a motion to amend the complaint, dkt. no. 16, along with a proposed
amended complaint, dkt. no. 16-1. The defendants have not responded to the
plaintiff’s motion. The court will deny the plaintiff’s motion as futile.
1.

Standard of Review
A party may amend its pleading once as a matter of course within

twenty-one days after service of a responsive pleading. Federal Rule of Civil
Procedure 15(a)(1)(B). The plaintiff filed his motion before the defendants filed
their answer to the original complaint, so his amended complaint would fall
under this “once as a matter of course” rule. A district court is not required to

1

allow someone to file an amended complaint, however, even when the
defendants haven’t responded to the original complaint, if the proposed
amended complaint is deficient. See Johnson v. Dossey, 515 F.3d 778, 780
(7th Cir. 2008); see also Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993)
(if a plaintiff seeks to add additional defendants, he must first obtain leave from
the court, regardless of when the amended complaint was filed).
The law requires the court 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). The court must dismiss a complaint
if the plaintiff raises 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).
To state a claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the plaintiff pleads factual content that
allows a court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
To state a claim under 42 U.S.C. §1983, a plaintiff must allege that: 1)
someone deprived him of a right secured by the Constitution or laws of the
United States; and 2) whoever deprived him of that right was 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 F.3d 856, 861 (7th Cir.
2

2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court gives 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
2.

Background—Original Complaint and Screening Order
When it screened the original complaint, the court permitted the plaintiff

to proceed on deliberate indifference claims against defendants Scarpita,
Kamphuis, Larson and Doehling based on allegations that they knowingly
refused to follow a podiatrist’s recommendations. Dkt. No. 13 at 8. The court
also allowed the plaintiff to proceed on a deliberate indifference claim against
defendant Stadtmueller, based on allegations that she originally told the
plaintiff that the institution had ordered shoes and inserts for him, but after
the plaintiff’s repeated inquiries, told him that the institution would not order
shoes due to a policy change. Id. at 8-9. Next, the court allowed the plaintiff to
proceed on a deliberate indifference claim against Muenchow. Id. at 9. The
court stated it was a “close call,” but permitted him to proceed based on
allegations that Muenchow was a member of the “special needs committee” and
should have authorized the plaintiff to buy shoes from an outside vendor. Id.
Finally, the court permitted the plaintiff to proceed on a state law claim against
the defendants. Id.
The court dismissed several defendants at screening. The court
dismissed defendant Warden Foster because the plaintiff had not alleged
sufficient facts against him. Id. at 8. The plaintiff had alleged that when he
3

complained to Foster, he got a response from Stadtmueller. Id. The court also
dismissed defendants White and Tritt because the plaintiff did not make
specific allegations against either defendant. Id. at 9.
3.

Plaintiff’s Motion to Amend and Proposed Amended Complaint
In his motion to amend the complaint, the plaintiff states that the

proposed amended complaint reflects the actions of Warden Brian Foster and
Captain Kyle Tritt. Dkt. No. 16 at 1. The plaintiff states that he amended
paragraphs 4, 10, 60, 61 and 65 in the amended complaint to show these
actions.
Paragraphs 4 identifies Warden Foster and paragraph 10 identifies
Captain Tritt. Dkt. No. 16-1 at 2, 3. In paragraph 60, the plaintiff states that
defendant Foster’s decision “not to provide qualified persons in the Health
Service Unit has rendered the Health Service Unit [ ] inadequate for the
treatment of inmates at Waupun Correctional Institution which resulted in
Mitchell being denied the care needed for his chronic pain in the feet, ankle
and knees[.]” Id. at 12, ¶60. In paragraph 61, the plaintiff states that defendant
Foster, as warden, has an obligation to “ensure that the person[s] under his
employ are trained in the care—plan triage and care of prisoners who have
been diagnosed with special needs as is the case with Mitchell and defendant
Foster’s decision not to do so resulted in the wanton infliction of pain of the
plaintiff[.]” Id. at 12, ¶61.
The plaintiff does not include any new allegations against Warden Foster.
As the court determined in the original screening order, these allegations do
4

not state a claim. The plaintiff alleges that when he complained to Foster, he
got a response (from Stadtmueller). Moreover, 42 U.S.C. §1983 does not
recognize respondeat superior (supervisory) liability. Polk Cty. v. Dodson, 454
U.S. 312, 325 (1981); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 699 n. 58
(1978). Section 1983 creates a cause of action based upon personal liability
and predicated upon fault. Although a supervisor can act through others to
commit a wrong, see Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982),
liability presupposes that he “caused or participated in the alleged
constitutional deprivation.” McBride v. Soos, 679 F.2d 1223, 1227 (7th Cir.
1982); see also Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006).
With regard to Tritt, paragraph 65 states that the
refusal of defendants Tritt, Kamphuis and Muenchow acting as the
so-called special needs committee to authorize the purchase of
personal shoes from an outside vendor exhibited deliberate
indifference and callous to Mitchell’s serious medical needs because
the defendants were made aware of the problem and has the
authority to take action but chose not to do so and chose not to do
so without any medical or security justification resulting in the
protracted pain and suffering from plantar fasciitis[.]
Dkt. No. 16-1 at 13, ¶ 65. Despite this paragraph in which the plaintiff argues
that he has a claim against Tritt, the amended complaint does not contain any
specific allegations against Tritt.
Allowing the plaintiff to proceed on his proposed amended complaint
would be futile because it does not state claims against Foster or Tritt. The
court will deny the motion to amend.

5

The defendants have answered the original complaint. At the same time
it enters this order, the court will enter a scheduling order which sets deadlines
for the completion of discovery and for filing dispositive motions.
The court DENIES the plaintiff’s motion to amend. Dkt. No. 16.
Dated in Milwaukee, Wisconsin this 4th day of December, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

6