Pietila v. Tritt et al

Filing 14

ORDER signed by Judge Pamela Pepper on 3/7/2018. John and Jane Does DISMISSED as defendants. Plaintiff may proceed on Eighth Amendment conditions of confinement claim against defendant Tritt. 5 10 Plaintiff's MOTIONS to Appoint Counsel DENIED without prejudice. Defendant Tritt to file responsive pleading within 60 days. Case to be returned to Judge Duffin. Parties may not begin discovery until after a scheduling order is entered setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Michael Pietila at Waupun Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
MICHAEL SCOTT PIETILA,
Plaintiff,
v.

Case No. 17-cv-1586-PP

CAPTAIN TRITT, and
JOHN AND JANE DOES,
Defendants.
______________________________________________________________________________
DECISION AND ORDER SCREENING THE PLAINTIFF’S AMENDED
COMPLAINT (DKT. NO. 13) AND DENYING THE PLAINTIFF’S MOTIONS TO
APPOINT COUNSEL (DKT. NOS. 5 AND 10)
______________________________________________________________________________
Plaintiff Michael Scott Pietila, a Wisconsin state prisoner who is
representing himself, filed a civil rights complaint under 42 U.S.C. §1983,
regarding his conditions-of-confinement at the Waupun Correctional
Institution (“WCI”). Dkt No. 1. He also has filed two motions asking the court to
appoint counsel to represent him. Dkt. Nos. 5, 10. The plaintiff has consented
to Judge Duffin’s authority to resolve the case, but because the defendants
have not yet been served, they have not had the opportunity to consent. For
that reason, the case is before this court for the limited purpose of screening
the amended complaint and resolving the pending motions for appointment of
counsel.

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I.

Screening the Amended 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). The court 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, the 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 the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. 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.
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Federal courts follow the two-step analysis in Twombly to determine
whether a complaint states a claim. Id. at 679. First, the 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
of truth.” Id. Second, the court determines whether the well-pleaded factual
allegations “plausibly give rise to an entitlement to relief.” Id. The 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)).
B.

Facts Alleged in the Amended Complaint

Magistrate Judge William Duffin screened the plaintiff’s original
complaint on February 7, 2018, and instructed the plaintiff to file an amended
complaint. Dkt. No. 12. Judge Duffin identified two main problems with the
original complaint: (1) the plaintiff had named nineteen different individuals as
defendants, but had not described what these individuals did or did not do to
violate his constitutional rights, and (2) it appeared that the plaintiff may have
been attempting to assert unrelated claims against different defendants in the
same lawsuit. Id. at 5-6.
The court received the plaintiff’s amended complaint on February 22,
2018; it named Captain Tritt and “John and Jane Does” as defendants. Dkt.
No. 13. Although the plaintiff did not re-plead all of the relevant factual
allegations from the original complaint, he explains that Tritt was the
“supervisor” during the one-month period that the plaintiff was in the
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Restrictive Housing Unit (“RHU”). Id. at 1. Tritt made “periodic rounds” on
RHU, and the plaintiff says that Tritt was the person who initially gave the
order to put the plaintiff in “control status.” Id.
The plaintiff indicates that he was temporarily insane, suffering from
paranoid delusions and living in an “alternate reality.” Id. at 2. He says that he
suffers from numerous mental health diagnoses that make it hard for him to
function from day to day. Id. The plaintiff alleges that while he was in the RHU,
he was not given linens, clothes or things to keep him warm, despite the fact
that it was winter/early spring and very cold. Id. Nor was he given things to
wash with, or hygiene items. Id. He says he had no mattress to sleep on, and
was not given toilet paper “until after about a month.” Id. He says that on
several occasions, he had to eat food after wiping his backside with his bare
hands. Id.
The plaintiff replaced the nineteen specific defendants he had named in
his original complaint with “John and Jane Does.” Id. He states “during this
time period so many WCI employees were deliberately indifferent.” Id. He says
he continually sought relief and help, making numerous requests for the items
he had not been given. Id. at 2-3. He says that “[a]ll knew about it, facilitated it,
condoned it, approved it, or turned a blind eye.” Id. at 3. The plaintiff provides
no other information about who the “John and Jane Does” are or what they did
or did not do to violate his constitutional rights. With regard to Tritt, the
plaintiff says that it is “almost impossible that [Tritt] did not facilitate or

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condone this treatment,” because he is “the only could who could have, and all
the employees [the plaintiff] talked to said ‘speak with Tritt.’” Id.
The plaintiff seeks monetary damages and injunctive relief.
C.

Legal Analysis

To state a claim under 42 U.S.C. §1983, the 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) (citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)).
“The Eighth Amendment’s prohibition against cruel and unusual
punishment imposes upon jail officials the duty to ‘provide humane conditions
of confinement’ for prisoners.” Henderson v. Sheahan, 196 F.3d 839, 844 (7th
Cir. 1999) (quoting Farmer v. Brennan, 511 U.S. 825, 832 (1994)). This means
that prison officials have an obligation to “ensure that inmates receive
adequate food, clothing, shelter, protection, and medical care.” Id. (quoting
Oliver v. Deen, 77 F.3d 156, 159 (7th Cir. 1996); Farmer, 511 U.S. at 832). A
prison official’s “deliberate indifference” to inhumane conditions of confinement
constitutes an Eighth Amendment violation. Id. (quoting Estelle v. Gamble, 429
U.S. 97, 105 (1976)). The constitutional deprivations must be sufficiently
serious to “result in the denial of the minimal civilized measure of life’s
necessities.” Id. (citing Farmer, 511 at 834). The prison official must know of

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the risk to the plaintiff, but fail to take reasonable measure to protect him. Id.
(citations omitted).
The plaintiff has alleged that Tritt knew that he was being deprived of
necessities such as hygiene items, warm clothes, and toilet paper, but did
nothing about it. The court finds that, at this early stage, the plaintiff has
alleged sufficient facts to allow him to proceed on an Eighth Amendment
conditions-of-confinement claim against Tritt regarding the one-month period
the plaintiff was in RHU. His allegations are sufficient to state an Eighth
Amendment claim that Tritt denied the plaintiff “the minimal civilized measure
of life’s necessities.” See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
The plaintiff implies that Tritt placed him in RHU in retaliation for the
fact that the plaintiff had spit on Officers Detert and Pohl. To state a First
Amendment retaliation claim, the plaintiff must show that he engaged in
activity protected by the First Amendment, that the defendant subjected him to
a deprivation that would likely deter First Amendment activity in the future,
and that the plaintiff’s First Amendment activity was a motivating factor in the
defendant’s decision to take retaliatory action. Novoselsky v. Brown, 822 F.3d
342, 354 (7th Cir. 2016) (quoting Gomez v. Randle, 680 F.3d 859, 866 (7th Cir.
2012)).
The court will not allow the plaintiff to proceed on a First Amendment
retaliation claim against Tritt. The plaintiff has not alleged that spitting on
corrections officers is an activity protected by the First Amendment.

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Finally, the court will not allow the plaintiff to proceed against John and
Jane Does. As Judge Duffin explained in the original screening order, the
plaintiff must identify basic facts about what each John or Jane Doe did or did
not do to violate his constitutional rights. The plaintiff cannot simply ask to
proceed against anyone and everyone who worked in RHU during a one-month
period. He must make specific allegations, such as, “On such and such a date,
a female corrections officer refused my request for a mattress.” He could then
use the discovery process to obtain the name of that female corrections officer.
But the plaintiff simply states that there were a lot of people who saw the way
he was treated, and did nothing about it. Even under a liberal pleading
standard, the plaintiff fails to state claims for relief against John and Jane
Does. The court will dismiss John and Jane Does as defendants.
II.

Motions for Appointment of Counsel
The plaintiff filed two motions asking the court to appoint a lawyer to

represent him. Dkt. Nos. 5, 10. In the first motion, he explains that he has
cognitive and psychological disorders, as well as physical health problems. He
says he has no legal training, and cannot afford a lawyer to represent him. He
also indicates that he has written to three legal organizations, seeking legal
representation. Dkt. No. 5. In the second motion, the plaintiff asserts that he
has four cases pending before this court, and that he is overwhelmed with
trying to manage all of them. Dkt. No. 10. He says he does not know how much
more pressure he can take. In this motion, he lists twelve lawyers whom he has
contacted. Id.
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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). 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 the 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 (citing Pruitt, 503 F.3d at 655). 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. “[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)).
The court is satisfied that the plaintiff made reasonable attempts to
secure counsel on his own. See Dkt. No. 10 at 1-2. However, it will not appoint
counsel at this time. The plaintiff’s complaint describes what happened to him
and why he believes it violated his constitutional rights, and the court is able to
understand the facts. Although the plaintiff is not legally trained and has been
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diagnosed with mental illness, his writing is coherent and the court
understands what the plaintiff is attempting to express in his filings.
The plaintiff also explains that he is “severely overwhelmed with trying to
figure out how to go forward with these 4 cases.” Dkt. No. 10 at 1. All four of
the plaintiff’s cases, however, are in their early stages. In this case, as in
others, there is nothing for the plaintiff to do at this point but wait for the
defendants to file an answer. If and when the defendants file an answer, Judge
Duffin will issue a scheduling order with further institutions on how to conduct
discovery and file dispositive motions. Right now, the court has no evidence
before it to conclude that the plaintiff cannot coherently present his case.
Therefore, the court will deny his motions to appoint counsel without prejudice.
That means that, if things get too complicated for the plaintiff to handle later
on, he may renew his request.
IV. CONCLUSION
The court ORDERS that John and Jane Does are DISMISSED as
defendants.
The court ORDERS that the plaintiff may proceed on an Eighth
Amendment conditions-of-confinement claim against defendant Tritt.
The court ORDERS that the plaintiff’s motion to appoint counsel is
DENIED WITHOUT PREJUDICE. Dkt. No. 5.
The court ORDERS that the plaintiff’s second motion to appoint counsel
is DENIED WITHOUT PREJUDICE. Dkt. No. 10.

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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 today to the Wisconsin
Department of Justice for service on Tritt. Tritt shall file a responsive pleading
to the complaint within sixty days of receiving electronic notice of this order.
The court ORDERS that the parties may not begin discovery until after
Judge Duffin enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that this case is RETURNED to Magistrate Judge
Duffin for further proceedings.
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, he will be required 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 further advises the plaintiff that if he does not file documents
or take other court-ordered actions by the deadlines the court sets, the court
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.
1

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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 7th day of March, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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