Barfell v. Correctional Health Care Companies et al

Filing 16

SCREENING ORDER signed by Judge J.P. Stadtmueller on 4/16/2018 re 10 Amended Complaint. Defendants Correctional Health Care Companies, Winnebago County Jail, Sgt. Makurat, John Matz, Sgt. Durrant, Sgt Manthey, and CPI Tuttle DISMISSED from action. Plaintiff PERMITTED to proceed on Eighth Amendment claim for deliberate indifference to serious medical needs against Defendants Nurse Katrina and Dr. Anuligo. U.S. Marshals Service to SERVE copy of Amended Complaint and this Order on Defend ants Nurse Katrina and Dr. Anuligo, who shall FILE a responsive pleading to the Amended Complaint. 7 and 14 Plaintiff's Motions to Appoint Counsel DENIED without prejudice. Case RETURNED to Magistrate Judge William E. Duffin for further proceedings. Parties may not begin discovery until after a Scheduling Order is entered. See Order for further details. (cc: all counsel, via mail to Thomas H L Barfell at Winnebago County Jail)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS H. L. BARFELL,
Plaintiff,
v.
CORRECTIONAL HEALTH
CARE COMPANIES, WINNEBAGO
COUNTY JAIL, NURSE KATRINA,
SGT. MAKURAT, SGT. DURRANT,
SGT. MANTHEY, JOHN MATZ, DR.
ANULIGO, and CPI TUTTLE,

Case No. 17-CV-1365-WED-JPS

ORDER

Defendants.
Plaintiff Thomas H. L. Barfell, a Wisconsin state prisoner who is
representing himself, filed a complaint under 42 U.S.C. § 1983, alleging
that defendants violated his civil rights. On December 18, 2017, Magistrate
Judge William E. Duffin screened the complaint and ordered plaintiff to
file an amended complaint if he wanted to proceed with this lawsuit.
(Docket #8). Among other things, Magistrate Duffin noted that Plaintiff
appeared to be attempting to join many different unrelated claims against
different unrelated parties in the same lawsuit, in violation of Federal Rule
of Civil Procedure 20(a). Id. at 8.
Plaintiff filed an amended complaint in this case on January 9, 2018.
(Docket #10). He also filed two additional lawsuits, Barfell v. Aramark, Case
No. 17-CV-1567-WED-JPS (E.D. Wis.), and Barfell v. Prekop, Case No. 17CV-1739-WED-JPS (E.D. Wis.). Plaintiff then filed a motion to consolidate
the cases, which Magistrate Duffin denied for the reasons explained in his

screening order—namely, that doing so would violate Rule 20(a). (Docket
#13, #15). The magistrate told Plaintiff to notify the court by March 16,
2018 if he wanted to voluntarily dismiss any of his lawsuits. (Docket #15).
Plaintiff did not voluntarily dismiss this lawsuit. Further, not all
parties have had the opportunity to fully consent to magistrate judge
jurisdiction under 28 U.S.C. § 636(c). Therefore, this matter is before this
branch of the Court for the limited purpose of screening the amended
complaint, (Docket #10), and resolving pending motions, (Docket #7, #14).
1.

Screening the Amended Complaint
1.1

Applicable Law

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).

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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
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. The Court is obliged to give Plaintiff’s pro se allegations,
“‘however inartfully pleaded,’” a liberal construction. See Erickson v.

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Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
1.2

Factual Allegations

Plaintiff is an inmate at the Winnebago County Jail (“WCJ”).
Defendants are: Correctional Health Care Companies (“CHCC”), WCJ,
Nurse Katrina, Sergeant Makurat, Sergeant Durrant, Sergeant Manthey,
John Matz, Dr. Anuigo, and CPI Tuttle.
Plaintiff’s amended complaint is difficult to read and repetitive. He
explains that he has several medical issues, including: Hepatitis C, cavities
in his teeth, severe bodily pain in his face, neck, and stomach, chronic
bronchitis/congestion, and vision problems. According to Plaintiff, WCJ
has a prison policy not to treat Hepatitis C or to “send out inmates” for
dental care. (Docket #10 at 2). Between September 2017 and November
2017, Plaintiff asked correctional officers Durrant, Tuttle, and Manthey for
a grievance form to address his medical issues, but they continuously
refused to provide one. Plaintiff explains that WCJ has a policy to not
provide grievance forms for “issues [that are not] grievable.” Id. at 7.
During this time, Plaintiff also explained his medical problems to
Nurse Katrina and Dr. Anuligo (the Court presumes that Plaintiff’s
reference to “the doctor” in his allegations is Dr. Anuligo) but they have
not resolved the issues. They continue to prescribe pain medication that
Plaintiff cannot take with his existing liver issues. Further, Plaintiff’s
cavities have not been fixed, his congestion issues remain, and he still
does not have glasses to fix his vision problem. Nurse Katrina and Dr.
Anuligo also have not approved a restriction for extra mattress/pillows for
his neck pain. For relief, Plaintiff seeks monetary damages and a change in
jail policy.
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1.3

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.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446
U.S. 635, 640 (1980).
At the outset, the Court must dismiss WCJ as a defendant. A
county jail is not a “person” subject to suit under Section 1983. See
Nawrocki v. Racine Cty. Jail, No. 08-CV-96-BBC, 2008 WL 4417314, at *1
(W.D. Wis. Mar. 7, 2008) (“[A] building is not a proper party to a lawsuit
brought under 42 U.S.C. § 1983.”).
Next, the Court will dismiss John Matz and Sgt. Makurat from this
action for lack of personal involvement. Liability under Section 1983 is
based on a defendant’s personal involvement in the constitutional
violation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). “An official
satisfies the personal responsibility requirement of section 1983. . .if the
conduct causing the constitutional deprivation occurs at [his] direction or
with [his] knowledge and consent.” Id. He “must know about the conduct
and facilitate it, approve it, condone it, or turn a blind eye.” Id.
Plaintiff alleges no facts at all about Matz, including what he did or
did not do to violate his constitutional rights. Plaintiff mentions Makurat
in the complaint once, stating that Makurat was present during a physical
examination. Plaintiff explains that Makurat was there because WCJ
policy required “a deputy present at all times.” (Docket #10 at 4). It is
unclear what constitutional rights Plaintiff believes Makurat violated.
Therefore, the Court will dismiss Matz and Makurat.
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The Court now turns to the remaining individual defendants. 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. Prison officials act with deliberate indifference
when they know of a substantial risk of serious harm and either act or fail
to act in disregard of that risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011). A medical need is sufficiently “serious” if the inmate’s condition
“has been diagnosed by a physician as mandating treatment or. . .is so
obvious that even a lay person would perceive the need for a doctor’s
attention.” Id.
Plaintiff states that he has several painful medical conditions.
Between September 2017 and November 2017, Plaintiff told Nurse Katrina
and Dr. Anuligo about the conditions and they have failed to resolve the
issues, leaving him in severe pain. Based on these allegations, Plaintiff
may proceed with an Eighth Amendment claim that Nurse Katrina and
Dr. Anuligo showed deliberate indifference towards his serious medical
needs.
Plaintiff also suggests that Durrant, Manthey, and Tuttle hindered
his access to the courts by refusing to give him inmate grievance forms to
complain about his medical needs. The Court will allow him to proceed
with a claim concerning these facts in his third lawsuit, Barfell v. Prekop,
Case No. 17-CV-1739-WED-JPS (E.D. Wis.). This lawsuit is limited to his
Eighth Amendment medical care claims. Therefore, the Court will dismiss
Durrant, Manthey, and Tuttle from this action.
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Finally, the Court considers Plaintiff’s claims against CHCC. A
private corporation can be held liable under Section 1983 for its
employees’ constitutional violations if an official corporate policy caused
the violation. See Woodward v. Corr. Med. Servs. of Ill., Inc., 368 F.3d 917, 927
(7th Cir. 2004); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832
(7th Cir. 2009). The plaintiff must show that an official corporate policy
reflects “a conscious choice among alternatives that evinces a deliberate
indifference to the rights of the individuals with whom those employees
will interact.” Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 675 (7th Cir.
2012).
Plaintiff does not mention CHCC anywhere in the amended
complaint other than the caption. As a result, he fails to identify an official
corporate policy that allegedly violates the Eighth Amendment. Plaintiff
does state that “WCJ” has various “policies” that violate the Eighth
Amendment. However, as Magistrate Duffin explained in the original
screening order, WCJ is not a proper party to the lawsuit, and the court
has already given Plaintiff one opportunity to amend the complaint to
cure this deficiency. Therefore, the Court will also dismiss CHCC.
Finally, plaintiff mentions “HIPPA violations” and “open records
violations” several times in his amended complaint but fails to provide
sufficient factual background to state a claim upon which relief can be
granted in either case. Therefore, he may not proceed with these claims.
2. Plaintiff’s Motions to Appoint Counsel
Plaintiff also asks for Court-appointed counsel. (Docket #7, #14). He
explains that he is disabled and has an injury that affects his memory and
eyesight. (Docket #7).

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In a civil case, the Court has discretion to recruit a lawyer for
someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692, 696 (7th Cir.
2013). However, the litigant must first make reasonable efforts to hire
private counsel on his own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007).
In this district, a plaintiff can satisfy this requirement by providing the
Court with: (1) the attorneys’ names, (2) the addresses, (3) the date and
way plaintiff attempted to contact them, and (4) the attorneys’ responses.
Once the plaintiff makes reasonable attempts to hire counsel, the
Court then decides “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. The Court looks not only at
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.
Plaintiff states that has made “repeated efforts to obtain a lawyer.”
(Docket #14). He appears to have written out the text of a letter he
allegedly sent to attorneys requesting counsel. (Docket #14-1). As
discussed above, Plaintiff must prove that he actually attempted to contact
lawyers by providing the Court with the following information: (1) the
attorneys’ names, (2) the addresses, (3) the date and way he attempted to
contact them, and (4) the attorneys’ responses. Plaintiff has not satisfied
this requirement. “[D]eciding whether to recruit counsel ‘is a difficult
decision: Almost everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing and able to
volunteer for these cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir.
2014) (quoting Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014)). Thus,
Plaintiff must first do what is required of him before the Court will
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consider appointing counsel. Therefore, the Court will deny without
prejudice Plaintiff’s motions for appointment of counsel.
Accordingly,
IT IS ORDERED that Correctional Health Care Companies,
Winnebago County Jail, Sgt. Makurat, John Matz, Sgt. Durrant, Sgt.
Manthey, and CPI Tuttle be and the same are hereby DISMISSED from
this action;
IT IS FURTHER ORDERED that Plaintiff’s motions to appoint
counsel (Docket #7, #14) be and the same are hereby DENIED without
prejudice;
IT IS FURTHER ORDERED that the United States Marshal shall
serve a copy of the amended complaint and this order on defendants
Nurse Katrina and Dr. Anuligo under Federal Rule of Civil Procedure 4.
Congress requires the U.S. Marshals Service to charge for making or
attempting such service. 28 U.S.C. § 1921(a). Although Congress requires
the court to order service by the U.S. Marshals Service, it has not made
any provision for either the court or the U.S. Marshals Service to waive
these fees. The current fee for waiver-of-service packages is $8.00 per item
mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
The U.S. Marshals will give the plaintiff information on how to remit
payment. The Court is not involved in collection of the fee;
IT IS FURTHER ORDERED that Defendants Nurse Katrina and
Dr. Anuligo shall file a responsive pleading to the amended complaint;
IT IS FURTHER ORDERED that the Court RETURNS this case to
Magistrate Judge William E. Duffin for further proceedings;

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IT IS FURTHER ORDERED that the parties may not begin
discovery until after the court enters a scheduling order setting deadlines
for discovery and dispositive motions; and
IT

IS

FURTHER

ORDERED

that

Plaintiff

to

mail

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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE JUDGE’S
CHAMBERS. It will only delay the processing of the case.
The Court advises plaintiff that, if he fails to file documents or take
other required actions by the deadlines the court sets, the Court may
dismiss the case based on his 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 at Milwaukee, Wisconsin, this 16th day of April, 2018.
BY THE COURT:

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

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