Cheek, Joshua v. Beeman, Jen et al

Filing 42

ORDER granting in part and denying in part plaintiff's 37 motion to reconsider his request to amend his complaint. Plaintiff is GRANTED leave to proceed on his claims for excessive force and denial of access to medical care under the Eighth or the Fourteenth Amendment and on his state law battery claim against defendant Jen Beeman. He is DENIED leave to proceed on his denial of access to the courts claim against members of the Mendota Mental Health Institute staff. Defendant is to advise the court no later than April 2, 2014 whether she wishes to amend her motion for summary judgment. Briefing on defendant's summary judgment motion, dkt. # 30 , is STAYED until after April 2. Signed by District Judge Barbara B. Crabb on 3/27/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOSHUA CHEEK,
OPINION AND ORDER
Plaintiff,
13-cv-527-bbc
v.
JEN BEEMAN,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - In this civil action, pro se plaintiff Joshua Cheek is proceeding on a claim that
defendant Jen Beeman violated his constitutional rights when she bit him during an
altercation at Mendota Mental Health Institute. Plaintiff sought to amend his complaint
to include a state law tort claim against defendant on the same facts and to include a claim
against other defendants for denying him access to the courts on this case. Dkt. #27.
Because plaintiff had not alleged that he filed a notice of claim letter as required for state law
torts against state employees and because he had not shown that he had received any actual
injury in his access to courts claim, I denied his motion in an order dated March 6, 2014.
Dkt. #35. He had also sought to include a “breach of care contract” claim, which I denied
because he had not alleged any factual basis for the claim. Id.
Plaintiff now requests that the court reconsider its decision on the grounds that he
attempted to file a timely notice of claim letter but was prevented from doing so by certain

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Mendota Mental Health Institute employees and that defendant breached her duty of care
to him by failing to provide him medical care. Dkt. #37. I will allow plaintiff to proceed
on the battery claim, and I will allow him to proceed on a claim for denial of medical care
under the Eighth or the Fourteenth Amendment. His motion will be denied as to his access
to the courts claim because it is not ripe.

OPINION
A. Battery
Plaintiff asks the court to reconsider its March 6, 2014 decision denying him leave
to amend his complaint to include a claim for battery. His request was denied because he
had not alleged that he filed or attempted to file a notice of claim letter as required when
suing state employees. Wis. Stat. § 893.82(3). With his current motion, plaintiff submitted
a copy of his signed and notarized notice of claim letter, dated April 27, 2013. On its face,
this letter is late: plaintiff’s injury occurred on August 29, 2012, and he had only 120 days
from that date in which to serve the Wisconsin Attorney General. However, plaintiff says
that this letter was late because Mendota Mental Health Institute employees prevented him
from sending it. Although it is not clear whether such an excuse is valid under the state’s
notice of claim statute, Wis. Stat. § 893.82(2m)-(3), that question is one for defendant to
address, so I will allow plaintiff to proceed on his battery claim against defendant.

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B. Medical Care
Plaintiff also seeks to add a claim for what he calls “breach of care contract.” He was
denied leave to amend his complaint to add this claim because he alleged no facts about it.
In his motion to reconsider, he explains that this claim was meant to address defendant’s
failure to provide him medical care after his bite injury. I am aware of no authority that
provides plaintiff a contractual right to medical care from state facilities. Nevertheless, he
does have a right to adequate medical care under the Eighth or the Fourteenth Amendment
to the Constitution. Estelle v. Gamble, 429 U.S. 97, 103 (1976). To state such a claim,
plaintiff must allege that defendant was deliberately indifferent to his serious medical need.
Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). A bite that breaks the skin may
be a serious medical need and refusal to treat it may be deliberate indifference. Id. Plaintiff
has therefore alleged the bare minimum of what is required to state this claim, but he should
be aware that he must provide much more detail at summary judgment. At that stage,
plaintiff will have to produce evidence showing the precise condition of his hand, what care
he requested, how defendant responded and whether anyone else provided him care.
Nevertheless, at this early stage of the case, plaintiff may proceed on this claim on the basis
of the allegations in his amended complaint and motion.

C. Access to Courts
Plaintiff says that the refusal by certain Mendota Mental Health Institute employees
to allow him to send his notice of claim letter should also serve as an actual injury for his

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access to the courts claim. An “actual injury” for the purposes of stating an access to courts
claim must have“hindered [the prisoner’s] efforts to pursue a legal claim,” resulting in some
harm to plaintiff, such as his inability to file a complaint or pursue a particular claim. Lewis
v. Casey, 518 U.S. 343, 351 (1996). However, he is proceeding on his battery claim against
defendant at this time, which means that nothing adverse has happened to him and he has
not yet experienced an injury. Any denial of access to the courts claim he might have is not
yet ripe, so he will not be allowed to proceed on it at this time.

D. Status of Case
After reconsidering the March 6, 2014 order denying plaintiff leave to amend his
complaint, I am allowing plaintiff to amend his complaint to include a claims of battery and
denial of medical care claim against defendant, in addition to the excessive force claim
against her. Adding these claims now, at an early stage of the litigation and well ahead of
the September deadline for dispositive motions, will not seriously prejudice defendant, given
that the claims all arise from similar facts. It does not appear that the new claims affect the
determination of defendant’s pending summary judgment motion on Heck v. Humphrey,
dkt. #30, because the battery claim involves the same defense and the denial of medical care
claim is not implicated by Heck. Nevertheless, I will allow defendant to amend and refile
her motion if she wishes to do so. Defendant must advise the court no later than April 2,
2014 whether she wishes to amend her motion. The briefing schedule will be held in
abeyance until defendant states her intentions.

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Plaintiff’s amended complaint, dkt. # 27, and his motion to reconsider, dkt. #37,
acting as a supplement to that complaint, now serve as the operative pleading in this
litigation.

ORDER
IT IS ORDERED that
1. Plaintiff Joshua Cheek’s motion to reconsider his request to amend his complaint,
dkt. #37, is GRANTED IN PART and DENIED IN PART. Plaintiff is GRANTED leave to
proceed on his claims for excessive force and denial of access to medical care under the
Eighth or the Fourteenth Amendment and on his state law battery claim against defendant
Jen Beeman. He is DENIED leave to proceed on his denial of access to the courts claim
against members of the Mendota Mental Health Institute staff.
2. Defendant is to advise the court no later than April 2, 2014 whether she wishes
to amend her motion for summary judgment.
3. Briefing on defendant’s summary judgment motion, dkt. #30, is STAYED until
after April 2.
Entered this 27th day of March, 2014.

BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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