Haskell v. Walls et al

Filing 13

SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/6/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee and DENYING without prejudice 4 Plaintiff's Motion to Appoint Counsel. Defendant s Secretary Edward Walls, Warden Judy Smith, and Danielle Foster DISMISSED from action. Plaintiff PERMITTED to proceed on claim of deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, against Defendants Dr. Stre lnick and Dr. Patrick Murphy. Copies of Plaintiff's Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on defendants, who shall file a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT balance of filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Wayne Haskell and Warden at Oshkosh Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WAYNE HASKELL,

v.

Plaintiff,

SECRETARY EDWARD WALLS,
WARDEN JUDY SMITH, DANIELLE
FOSTER, DR. STRELNICK, and DR.
PATRICK MURPHY,

Case No. 17-CV-1491-JPS

ORDER

Defendants.
Plaintiff, who is incarcerated at Oshkosh Correctional Institution,
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 $5.46. 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
conclusions must be supported by factual allegations. Id. If there are well-

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pleaded 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)).
Plaintiff’s allegations concern allegedly inadequate medical care he
received from prison medical personnel.1 The allegations are hard to follow,
however, as Plaintiff does not clearly set out a timeline of relevant events
or identify precisely what each Defendant did or did not do. As best the
Court can discern, Plaintiff suffers from bipolar disorder and type-2
diabetes, among other conditions. (Docket #1 at 2). In 2012, he was
prescribed lithium by a prison doctor, either Defendant Dr. Strelnick
(“Strelnick”) or Dr. Patrick Murphy (“Murphy”), both of whom provided
him care. See id. at 1–2. However, the prescribing doctor mistakenly
prescribed too high a dosage, leading to lithium toxicity, acute renal failure,
and an eight-day stay in a hospital intensive care unit in May 2015. Id. at 1.
Plaintiff appears to claim that these two doctors should have
discovered the overdosage before it resulted in toxicity. Id. at 1–2. He bases
this belief on his presentation of an inability to balance while walking or

Plaintiff attached many exhibits to his complaint. The Court must ignore
these documents, since a complaint must be judged solely on the allegations
within its four corners. Hill v. Trustees of Ind. Univ., 537 F.2d 248, 251 (7th Cir. 1976).
1

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standing, slurred speech, and thickened, scaly skin, which presumably are
all symptoms of lithium poisoning. Id. Further, Plaintiff claims that during
a review of his medical file in 2014 in connection with adding a new
medication, Lisinopril, to treat his diabetes, the reviewing doctor—again,
either Strelnick or Murphy—should have seen and corrected the lithium
dosage. Id. Apparently Lisinopril can have deleterious interactions with
lithium. See id.
Plaintiff’s complaint crosses the very low threshold set at screening
as to Murphy and Strelnick. To show that these doctors were deliberately
indifferent to his serious medical needs, in violation of the Eighth
Amendment, Plaintiff must show: (1) an objectively serious medical
condition; (2) that Defendants knew of the condition and were deliberately
indifferent in treating it; and (3) this indifference caused him some injury.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry has two components. “The official must have
subjective knowledge of the risk to the inmate’s health, and the official also
must disregard that risk.” Id. Negligence cannot support a claim of
deliberate indifference, nor is medical malpractice a constitutional
violation. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011). While the prison physicians’ error—if it was one—
might ultimately be explained as mere inadvertence, at the present stage
the Court, generously construing Plaintiff’s allegations, find that he states a
claim against them.
However, Plaintiff may not proceed on claims against the other
Defendants—Secretary Edward Walls, Warden Judy Smith, and Danielle
Foster. In the complaint, he makes no mention whatsoever of these
individuals. These officials cannot be liable for the actions of others simply
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because they may have acted in a supervisory capacity. Rather, they are
responsible only for their own conduct. Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995). Since Plaintiff does not allege that any of these
Defendants participated in his medical care or knew of Strelnick and
Murphy’s purported misconduct, no claim can be stated against them. Id.
(to be liable, a supervisory defendant “must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye”). Thus, for the
reasons stated above, Plaintiff shall be permitted to proceed on a claim of
deliberate indifference to his serious medical needs, in violation of the
Eighth Amendment, against Defendants Strelnick and Murphy. 28 U.S.C. §
1915A(b).
In closing, the Court makes an observation about a potential obstacle
in this case: exhaustion of prison administrative remedies. The Prison
Litigation Reform Act establishes that, prior to filing a lawsuit, a prisoner
must exhaust “such administrative remedies as are available[.]” 42 U.S.C. §
1997e(a). To do so, the prisoner must “file complaints and appeals in the
place, and at the time, the prison’s administrative rules require,” and he
must do so precisely in accordance with those rules; substantial compliance
does not satisfy the PLRA. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.
2002). Exhaustion is a precondition to suit, and so a lawsuit must be
dismissed even if the prisoner exhausts his administrative remedies during
its pendency. Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
The Wisconsin Department of Corrections maintains an Inmate
Complaint Review System (“ICRS”) to provide a forum for administrative
complaints. Wis. Admin. Code § DOC 310.04. There are two steps inmates
must take to exhaust their administrative remedies under the ICRS. First,
an inmate must file a complaint with the Institution Complaint Examiner
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(“ICE”) within fourteen days of the events giving rise to the complaint. Id.
§§ DOC 310.07(1), DOC 310.09(6). The ICE may reject a complaint or, before
accepting it, can direct the inmate to “attempt to resolve the issue.” See id.
§§ DOC 310.08, DOC 310.09(4), DOC 310.11(5). If the complaint is rejected,
the inmate may appeal the rejection. Id. § DOC 310.11(6).
Most of Plaintiff’s attachments to his complaint consisted of
decisions on his inmate complaints and subsequent appeals. While the
Court could not consider them when screening his allegations, it did review
these documents. They appear to show that Plaintiff did not timely file a
grievance regarding Strelnick’s or Murphy’s medical care. If this is so, then
his complaint could be subject to an early motion for summary judgment
on a failure to exhaust administrative remedies. The Court leaves it to
Defendants to seek judgment on that ground if a review of the evidence
supports such a conclusion.
Finally, the Court will address Plaintiff’s other pending motion, in
which he seeks the appointment of counsel. (Docket #4). Plaintiff claims he
needs counsel appointed for him because (1) he has bipolar disorder, (2) he
is indigent and lacks the resources to litigate this case, (3) his imprisonment
will hinder his ability to prosecute this case, (4) his case is complex, and (5)
a trial might involve conflicting testimony which counsel would be better
able to address. Id. at 1.
Plaintiff’s motion must be denied. As a civil litigant, Plaintiff has no
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—
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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 fails on the first Pruitt element, since he provides
evidence showing he sent only two letters to two different attorneys. See
(Docket #5-1 at 1–4). This is not the sort of robust, meaningful effort that the
Seventh Circuit requires of litigants before they enlist the aid of the Court
in searching for counsel. Russell v. Bukowski, 608 F. App’x 426, 428 (7th Cir.
2015). Indeed, it appears Plaintiff may have selected these two individuals
almost at random, as each responded by reporting that they do not practice
in this area of law. Plaintiff cannot simply send letters to any law office and
fulfill his obligations under Pruitt.
Moreover, were the Court to consider the second element, it would
find that the reasons Plaintiff has cited for needing counsel are unavailing.
First, the mere fact of imprisonment has never been recognized as a reason
to appoint counsel. Moreover, Plaintiff’s lack of legal training, while
unfortunate, brings him in line with practically every other prisoner
litigating in this Court. As such, this too is insufficient, standing alone, to
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merit the appointment of counsel. At best, these are complaints that counsel
would do a better job than Plaintiff, but the Seventh Circuit has rejected this
sort of reasoning. Pruitt, 503 F.3d at 655.
Second, the Court finds that, at least at this early stage in the case,
the issues presented are not so complex that Plaintiff cannot be expected to
adequately address them. Plaintiff’s only attempt to convince the Court
otherwise is to state that the case is “complex,” without elaboration, and to
claim that trial “will likely involve conflicting testimony,” which counsel
will be better able to handle. (Docket #4 at 1). Yet trial in this matter is a long
way off, so the potential rigors of trial are not a reason that counsel should
be appointed now.
Finally, Plaintiff has not submitted any evidence regarding how his
bipolar disorder affects him, particularly in relation to his ability to present
his arguments in a cogent fashion. See Henderson v. Ghosh, 755 F.3d 559, 565
(7th Cir. 2014). His filings thus far suggest that he has no such limitation.
As such, the Court concludes that recruitment of counsel in this case is not
justified at this time, and will deny Plaintiff’s motion for appointment of
counsel without prejudice.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s motion for appointment
of counsel (Docket #4) be and the same is hereby DENIED without
prejudice;
IT IS FURTHER ORDERED that Defendants Secretary Edward
Walls, Warden Judy Smith, and Danielle Foster be and the same hereby
DISMISSED from this action;
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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 are being electronically sent
today to the Wisconsin Department of Justice for service on Defendants;
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 the agency having custody of the
prisoner shall collect from his institution trust account the $350.00 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 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 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 Plaintiff is confined; and
IT IS FURTHER ORDERED that Plaintiff shall 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
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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the matter. As each filing
will be electronically scanned and entered on the docket upon receipt by
the clerk, Plaintiff need not mail copies to Defendants. All Defendants will
be served electronically through the court’s electronic case filing system.
Plaintiff should also retain a personal copy of each document filed with the
Court.
The Court further advises Plaintiff 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 6th day of December, 2017.
BY THE COURT:

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

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