Dees v. Clements et al

Filing 11

SCREENING ORDER signed by Judge J.P. Stadtmueller on 3/21/2018. 10 Plaintiff's Amended Complaint shall be the OPERATIVE complaint. Defendants Mark F. Clements, Donna Fontana, Beth Dittmann, Joanne Bovee, Warden Paul Kemper, Captain Chapman, Deputy Warden Johnson, Security Director Aldana, Sgt. Piech, Sgt. Hagerty, Officer Aker, K. Vasquez, K. Schultz, M. Redd, A. Hiltanen, B. LaBelle, B. Hompe, Cathy Jess, and Sgt. M. Green are DISMISSED from this action. Plaintiff PERMITTED to proce ed on a claim of deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, against Defendant Nurse Hoban. Copies of Plaintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendant, who shall file a responsive pleading within 60 days. See Order. (cc: all counsel, via mail to Charles Jolson Dees)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHARLES JOLSON DEES,
Plaintiff,
v.

Case No. 18-CV-54-JPS

MARK F. CLEMENTS, NURSE
HOBAN, DONNA FONTANA, BETH
DITTMANN, JOANNE BOVEE,
WARDEN PAUL KEMPER, CAPTAIN
CHAPMAN, DEPUTY WARDEN
JOHNSON, SECURITY DIRECTOR
ALDANA, SGT. PIECH, SGT.
HAGERTY, OFFICER AKER, K.
VASQUEZ, K. SCHULTZ, M. REDD,
A. HILTANEN, B. LABELLE, B.
HOMPE, CATHY JESS, and SGT. M.
GREEN,

ORDER

Defendants.
Plaintiff, who is incarcerated at the Drug Abuse Correctional Center
in Winnebago, Wisconsin, proceeds in this matter pro se. He filed a
complaint alleging that Defendants violated his constitutional rights.
(Docket #1). At the Court’s direction, see (Docket #9), he has filed an
Amended Complaint, (Docket #10). The Court now turns to screening that
complaint. All of the standards applicable to screening announced in the
Court’s original screening order apply here. (Docket #9 at 1–3).
Plaintiff’s Amended Complaint provides much more detailed
allegations than his original pleading. As before, Plaintiff alleges that he has
a prosthetic leg and had special shoes meant to be worn with it. (Docket #10

at 1). On January 20, 2016, Plaintiff was transferred to Dodge Correctional
Institution (“Dodge”). Id. During the intake process, Plaintiff met with
Defendant Nurse Hoban (“Hoban”). Id. She said that Plaintiff was not
allowed to have his special shoes and took them away. Id. at 2. Hoban gave
him standard issue inmate shoes instead. Id. Plaintiff complained that these
were uncomfortable and made walking more difficult, but Hoban was
unmoved. Id. Hoban said she would store Plaintiff’s special shoes for him,
but when he arrived at a new institution two months later, the shoes were
not with the rest of his property. Id. Plaintiff was eventually reimbursed for
the cost of the shoes. Id.
Plaintiff further alleges that the lack of his special shoes caused
various injuries. Id. at 3. An unidentified doctor told him that the injuries
were caused by Hoban’s refusal to let Plaintiff keep the special shoes. Id. In
October 2016, after complaining to the Department of Corrections, Plaintiff
was provided a new pair of special shoes. Id. Plaintiff also filed an inmate
grievance regarding his shoes being taken and his injuries. Id. The
grievance, which Plaintiff says went through Defendants M. Green, Beth
Dittmann, B. Hompe, Joanne Bovee, B. LaBelle, and Cathy Jess (collectively,
the “Grievance Defendants”), was apparently rejected. Id. Finally, Plaintiff
says that “[t]he following defendants failed to act and handle the
situation[,]” and proceeds to list most of the Defendants. Id. Plaintiff alleges
that Defendants’ conduct caused him physical pain and “extreme
emotional distress and mental anguish.” Id. at 4.
Plaintiff may proceed on an Eighth Amendment claim against
Hoban. For an Eighth Amendment claim of deliberate indifference to a
serious medical need, the plaintiff must prove: (1) an objectively serious
medical condition; (2) that the defendant knew of the condition and was
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deliberately indifferent in treating it; and (3) this indifference caused the
plaintiff some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
Plaintiff’s allegations, viewed generously, establish each element. First,
Plaintiff had a serious condition, namely the potential for injury if he was
not allowed to keep his special shoes. Second, Plaintiff related this to Hoban
but she took the shoes anyway. Third, the unidentified doctor opined that
Hoban’s actions caused Plaintiff’s later injuries.
Plaintiff has not stated a viable claim against any of the other
Defendants. As to the Grievance Defendants, they could only be liable if
they entirely ignored Plaintiff’s grievance. Greeno v. Daley, 414 F.3d 645, 656
(7th Cir. 2005); see also Figgs v. Dawson, 829 F.3d 895, 903–04 (7th Cir. 2016).
Plaintiff’s allegations show that they simply disagreed with his grievance,
not that they ignored it. Further, the Grievance Defendants were entitled to
rely on the care given to Plaintiff by Hoban and other medical professionals,
even if he believes that care was deficient. Greeno, 414 F.3d at 655–56.
There are no meaningful allegations as to the remaining Defendants.
Most are only mentioned as part of the list of people who “failed to act and
handle the situation.” As the Court warned Plaintiff in its original screening
order, he can only sue a defendant by explaining what that person did and
how those actions violated his rights. (Docket #9 at 5); see Bridges v. Gilbert,
557 F.3d 541, 545–46 (7th Cir. 2009) (“To satisfy the notice-pleading
standard, a complaint must provide a short and plain statement of the claim
showing that the pleader is entitled to relief, which is sufficient to provide
the defendant with fair notice of the claim and its basis. . . . The complaint
must actually suggest that the plaintiff has a right to relief, by providing
allegations that raise a right to relief above the speculative level.”)
(quotations and citations omitted). Plaintiff’s conclusory allegation that
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these Defendants “failed to act” is not enough to establish that any
constitutional violations occurred. A few of the Defendants listed in the
caption of the Amended Complaint, K. Schultz, M. Redd, and A. Hiltanen,
are not mentioned anywhere in the body of the pleading. See generally
(Docket #10). For the same reason, these Defendants must also be
dismissed.
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 Defendant Nurse Hoban. 28
U.S.C. § 1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s Amended Complaint (Docket #10)
shall be the operative complaint in this action;
IT IS FURTHER ORDERED that Defendants Mark F. Clements,
Donna Fontana, Beth Dittmann, Joanne Bovee, Warden Paul Kemper,
Captain Chapman, Deputy Warden Johnson, Security Director Aldana, Sgt.
Piech, Sgt. Hagerty, Officer Aker, K. Vasquez, K. Schultz, M. Redd, A.
Hiltanen, B. LaBelle, B. Hompe, Cathy Jess, and Sgt. M. Green be and the
same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s Amended Complaint and this Order are being
electronically sent today to the Wisconsin Department of Justice for service
on the remaining Defendant; and
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court, the

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remaining Defendant shall file a responsive pleading to the complaint
within sixty (60) days of receiving electronic notice of this Order.
Dated at Milwaukee, Wisconsin, this 21st day of March, 2018.
BY THE COURT:

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

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