Szopinski v. Foster et al

Filing 16

ORDER signed by Judge J P Stadtmueller on 2/22/2019. 14 Plaintiff's Motion for Leave to File Second Amended Complaint is GRANTED in part. Plaintiff is PERMITTED to remove Jennifer Kacyon and add Thomas Nelson, Captain Theander, and Correc tional Officer Gorman as defendants; the Second Amended Complaint (Docket #14-1) shall be the OPERATIVE pleading with respect to its allegations against such defendants; Plaintiff is PERMITTED to proceed against such defendants on Eighth Amendment co nditions of confinement claim. 15 Defendants' Motion to Reopen Discovery and Extend Dispositive Motion Deadline is GRANTED; Discovery is now to be completed by 4/15/2019 and Summary Judgment Motions are now due by 6/3/2019. See Order. (cc: all counsel, via mail to Kirk Szopinski at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
KIRK SZOPINSKI,
Plaintiff,
Case No. 18-CV-436-JPS

v.

ORDER

JENNIFER H. KACYON,
Defendant.

On July 5, 2018, the Court screened Plaintiff’s amended complaint.
(Docket #5). The Court allowed Plaintiff to proceed against Jennifer Kacyon
(“Kacyon”), a nurse, for withholding water from him under a “dry cell”
restriction, allegedly for medical reasons. Id. at 6–8. The Court dismissed
other defendants, Thomas Nelson (“Nelson”) and Brian Foster (“Foster”),
because Plaintiff alleged that they knew that Plaintiff was without drinking
water, but because of Plaintiff’s medical dry cell restriction, they believed
they could not give him any. Id. at 8. Non-medical prison officials “are
entitled to defer to the professional judgment of the facility’s medical
officials on questions of prisoners’ medical care[.]” Hayes v. Snyder, 546 F.3d
516, 527 (7th Cir. 2008). Therefore, the Court found that Plaintiff’s claims
against Nelson and Foster were defeated by Plaintiff’s allegations that they
relied on a medical order in deciding not to provide him water. (Docket #5
at 8).
On July 12, 2018, Plaintiff filed a motion for reconsideration of the
screening order, claiming that the other defendants may have turned off his
water by mistake, and so should remain in the case. (Docket #6). The next

day, the Court denied that motion on two bases. (Docket #7). First, the
allegations of the complaint remain unchanged, which attributed the lack
of water to Defendant’s medical order. Id. at 2. Second, even if the complaint
had included the allegations about a mistake by the other defendants, that
would not support constitutional liability. Id. On July 18, 2018, Plaintiff filed
a second motion for reconsideration of the Court’s screening order, (Docket
#8), and the Court denied that motion as well, (Docket #9). The Court
explained that if Plaintiff learned of more facts that would support
allegations against additional defendants, he was free to amend his
complaint in accordance with the local rules. Id. at 2.
On February 6, 2019, Plaintiff filed a motion for leave to amend his
complaint. (Docket #14). His proposed amended complaint abandons
Kacyon as a defendant and names several correctional staff members
instead. See (Docket #14-1). Plaintiff explains that, through discovery, he has
learned that Kacyon had no responsibility after entering the medical dry
cell order to ensure that Plaintiff received adequate drinking water. Instead,
he learned that this responsibility falls to prison supervisors. He then lists
as defendants the prison officials who were on duty during the three days
he was deprived of water, or who made notes in an observation log about
Plaintiff during that time.
Plaintiff’s new allegations imply a fact that was missing from his
amended complaint—that the prison supervisors knew Plaintiff should
receive water at regular intervals even when he was placed on medical dry
cell status. In other words, Plaintiff now alleges that the prison officials who
denied him water were not relying on the dry cell order, or were perhaps
feigning reliance on the order as an excuse for wantonly inflicting pain on
him; he implies their actions were motivated by malice or reckless
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indifference. These allegations are sufficient to satisfy the subjective prong
of an Eighth Amendment claim for purposes of screening.
The Court will allow Plaintiff to amend his complaint to remove
Kacyon as a defendant and instead name Nelson, Captain Theander, and
Correctional Officer Gorman. The Eighth Amendment conditions of
confinement claim against these three men is based on Plaintiff’s allegations
that they knew Plaintiff was being deprived of all water, Plaintiff asked
them for water, they knew he should receive water despite the dry cell
order, and they chose not to give him water. Although Plaintiff seeks to
name several other prison officials as defendants, he does not include in his
proposed amended complaint any allegations about their personal
involvement in his alleged deprivation. He merely recites from prison
observation logs notes from those officers indicating that they observed
Plaintiff alive in his cell during the three days he was allegedly without
water. This is not sufficient to state a claim under Section 1983. See Colbert
v. City of Chicago, 851 F.3d 649, 657 (7th Cir. 2017) (Individual liability under
Section 1983 requires personal involvement in the alleged constitutional
deprivation.).
In light of this amendment, the Court would typically order service
on the newly-named defendants under the informal service agreement
between the Wisconsin Department of Justice (“WDOJ”) and this Court.
That agreement permits defendants sixty days to file a responsive pleading.
However, the WDOJ indicated, in response to Plaintiff’s motion to file a
second amended complaint, that if the Court were to grant Plaintiff’s
motion, the WDOJ as counsel for the new defendants would like discovery
reopened and the dispositive motion deadline (currently set for March 1,
2019) extended. (Docket #15). The Court will treat this motion as having
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been filed on behalf of the newly-named defendants and, finding the
request reasonable, will grant it. The discovery cutoff date will be extended
to April 15, 2019, and the dispositive motion deadline will be extended to
June 1, 2019.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to file a second
amended complaint (Docket #14) be and the same is hereby GRANTED in
part. Plaintiff is permitted to amend his pleading to remove Jennifer Kacyon
as a defendant and add Thomas Nelson, Captain Theander, and
Correctional Officer Gorman as defendants. The second amended
complaint, with respect to its allegations against those defendants, shall be
the operative pleading in this matter; and
IT IS FURTHER ORDERED that Defendants’ motion to reopen
discovery and extend the dispositive motion deadline (Docket #15) be and
the same is hereby GRANTED. The discovery cutoff date will be extended
to April 15, 2019, and the dispositive motion deadline will be extended to
June 3, 2019.
Dated at Milwaukee, Wisconsin, this 22nd day of February, 2019.
BY THE COURT:

J. P. Stadtmueller
U.S. District Judge

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