Turner, James v. Doe, John et al

Filing 31

ORDER denying 26 Motion for Assistance in Recruiting Counsel; denying 15 Motion to Dismiss; denying as moot 19 Motion to Amend Complaint; granting 24 motion to amend complaint to replace defendant Blount with Lucas Wogernese. Blount is DISMISSED from the case. Signed by District Judge James D. Peterson on 2/5/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JAMES TURNER,
Plaintiff,
v.

OPINION & ORDER

PHILIPP HOECHST, MEREDITH MASHAK,
CHARLES FACKTOR, CINDY O’DONNELL,
and RYAN BLOUNT,

15-cv-23-jdp

Defendants.1
Plaintiff James Turner, a prisoner in the custody of the Wisconsin Department of
Corrections at the Columbia Correctional Institution, brings claims that defendant prison
officials interfered with back and leg therapy ordered by a doctor. Defendants Ryan Blount,
Cindy O’Donnell, and Charles Facktor, all of whom were alleged to have denied plaintiff’s
grievance about the cancellation of therapy, have filed a motion to dismiss plaintiff’s claims
against them, Dkt. 15. Plaintiff filed a motion to dismiss Blount from the case, Dkt. 19, but
in opposing defendants’ motion to dismiss, he clarifies that he mistakenly alleged that Blount
had participated in reviewing his grievances, and would like to substitute previously
dismissed defendant Lucas Wogernese for Blount, Dkt. 24. Plaintiff has also filed a motion
for appointment of counsel, Dkt. 26.
A. Motion to dismiss
Defendants Blount, O’Donnell, and Facktor contend that plaintiff’s claims against
them should be dismissed because grievance examiners cannot be held liable for their

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I have amended the caption to reflect plaintiff’s identification of the John Doe defendant in
his original complaint as Philipp Hoechst. See Dkt. 27 & 28.

decisions to deny plaintiff’s grievance about the cancellation of his therapy. Because I have
already screened plaintiff’s complaint and allowed him to proceed with claims against these
defendants, their motion is essentially one for reconsideration of the July 6, 2015, screening
order. Dkt. 10. Defendants fail to persuade me that I was incorrect in allowing plaintiff to
proceed on these claims.
In the screening order, I stated, “I understand plaintiff to be saying that the therapy
was cancelled because plaintiff failed to show up to an August 2014 therapy appointment,
but plaintiff missed the appointment through no fault of his own, because he did not receive
a pass to go to the appointment.” Dkt. 10, at 2. I infer that plaintiff’s theory is that each of
the examiners denied his grievance despite knowing that he missed the appointment through
no fault of his own.2
Defendants argue that the grievance examiners cannot be held liable under the Eighth
Amendment for their actions because plaintiff “does not allege that [defendants] failed to
implement their duties as part of the grievance process . . . . [or] had direct involvement in
the cancellation of his therapy.” Dkt. 16, at 6. They rely on Burks v. Raemisch, 555 F.3d 592
(7th Cir. 2009), and George v. Smith, 507 F.3d 605 (7th Cir. 2007). In Burks, the Seventh
Circuit stated:
The Governor, and for that matter the Superintendent of
Prisons and the Warden of each prison, is entitled to relegate to
the prison's medical staff the provision of good medical care.
That is equally true for an inmate complaint examiner.

2

Plaintiff has submitted the examiners’ responses to his grievance and appeals, but he does
not include the grievance or appeals themselves, so it is unclear what arguments he made to
defendants. In any event, defendants have filed a motion to dismiss, not a motion for
summary judgment, so I will not consider these documents.

2

One can imagine a complaint examiner doing her appointed
tasks with deliberate indifference to the risks imposed on
prisoners. If, for example, a complaint examiner routinely sent
each grievance to the shredder without reading it, that might be
a ground of liability. Or a complaint examiner who intervened to
prevent the medical unit from delivering needed care might be
thought liable. But Burks has not accused Salinas of refusing to
do her job and of leaving the prisoners to face risks that could be
averted by faithful implementation of the grievance machinery.
He contends, instead, that Salinas should be held liable because
she carried out her job exactly as she was supposed to. Burks
does not contend that a 14-day time limit is unconstitutionally
short—and, even if it were, a complaint examiner who applied
the limit before a court declared it invalid would be entitled to
qualified immunity from damages.
555 F.3d at 595 (citations omitted). In George, the court stated:
Only persons who cause or participate in the violations are
responsible. Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation. A guard
who stands and watches while another guard beats a prisoner
violates the Constitution; a guard who rejects an administrative
complaint about a completed act of misconduct does not.
507 F.3d at 609-10 (citations omitted).
At least at this early stage of the proceedings, neither of these cases forecloses
plaintiff’s claims against the examiner defendants. In Burks, the court concluded that the
examiner’s rejection of a grievance as time-barred under the grievance rules did not show
deliberate indifference. 555 F.3d at 594-95. In George, the court made clear that a grievance
examiner cannot violate the constitution by denying a complaint about a completed act of
harm. This makes sense because the examiner could take no action to undo the harm done to
the prisoner. Any broader reading of George’s statement that “[r]uling . . . on an
administrative complaint does not cause or contribute to the violation,” 507 F.3d at 609,
would seem to conflict with Burks, which allows for the possibility of a deliberate indifference
claim being brought against a grievance examiner.

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Here, plaintiff’s grievance and appeals were not denied on procedural grounds, and it
appears that the examiners could have undone the harm to plaintiff by reinstating his
therapy. If they acted with deliberate indifference in denying plaintiff’s grievance, they could
have violated the Eighth Amendment. Therefore, I will deny defendants’ motion to dismiss.
This does not mean that it will be easy for plaintiff to prove these claims. At summary
judgment or trial, plaintiff will have to present evidence showing that defendants acted with
deliberate indifference, not merely that they denied his grievance after considering his
request.
B. Motion to amend the complaint
Because I am denying defendants’ motion to dismiss, I will consider plaintiff’s motion
to remove defendant Blount and replace him with previously dismissed defendant
Wogernese. I construe this as a motion to amend the complaint. Under Federal Rule of Civil
Procedure 15(a)(2), I “should freely give leave [to amend the complaint] when justice so
requires.” There is no reason to think that defendants would be prejudiced by the
substitution, so I will grant plaintiff’s request. Plaintiff’s previous motion to dismiss
defendant Blount will be denied as moot.
C. Motion for appointment of counsel
Plaintiff has filed a motion for appointment of counsel, Dkt. 26. I do not have the
authority to appoint counsel to represent a pro se plaintiff in this type of a case; I can only
recruit counsel who may be willing to serve voluntarily in that capacity.
To show that it is appropriate for the court to recruit counsel, plaintiff must first show
that he has made reasonable efforts to locate an attorney on his own. See Jackson v. Cnty. of
McLean, 953 F.2d 1070, 1072-73 (7th Cir. 1992) (“the district judge must first determine if

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the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the
indigent was effectively precluded from making such efforts”). To meet this threshold
requirement, this court generally requires plaintiffs to submit correspondence from at least
three attorneys to whom they have written and who have refused to take the case. Plaintiff
has submitted two rejection letters and states that he has contacted at least two other lawyers
who have not responded. I conclude that plaintiff has satisfied this requirement.
Second, this court will seek to recruit counsel for a pro se litigant only when the
litigant demonstrates that his case is one of those relatively few in which it appears from the
record that the legal and factual difficulty of the case exceeds his ability to prosecute it. Pruitt
v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Plaintiff argues that this case involves
complex issues and that he has “very low achievement scores which raise some question as to
his mental ability.” Dkt. 26, at 1.
I am not convinced that recruitment of counsel is appropriate at this time. Plaintiff
does not include with his motion any documentation supporting his statement about his
mental abilities. Nor is it clear that this case will present the type of complex medical issues
often involved in cases in which counsel is recruited. At this point, it seems likely that the
case will come down to facts about why plaintiff failed to appear for therapy, and what
defendants knew about his failure to appear. I will deny plaintiff’s motion without prejudice
to him renewing it later in the case if it becomes clear that the case is too complex for him to
litigate. If plaintiff ends up filing a renewed motion later in this litigation, he should submit
records supporting his statement about his mental abilities.

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ORDER
IT IS ORDERED that:
1. Defendants Ryan Blount, Cindy O’Donnell, and Charles Facktor’s motion to
dismiss the claims against them, Dkt. 15, is DENIED.
2. Plaintiff James Turner’s motion to amend the complaint to replace defendant
Blount with Lucas Wogernese, Dkt. 24, is GRANTED. Blount is DISMISSED
from the case.
3. Plaintiff’s previous motion to dismiss defendant Blount, Dkt. 19, is DENIED
as moot.
4. Plaintiff’s motion for recruitment of counsel, Dkt. 26, is DENIED without
prejudice.
Entered February 5, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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