Dettlaff, Michael v. Prairie du Chien Correctional Institution et al

Filing 52

ORDER that in addition to the claims outlined in the leave to proceed order (dkt. # 19 , at 10), plaintiff Michael J. Dettlaff is GRANTED leave to proceed on claims that:(a) defendant Gary Boughton violated his rights to procedural due process und er the Fourteenth Amendment and proportional punishment under the Eighth Amendment by sentencing him to a lengthy term of segregation for a trivial violation.(b) defendants Tonja Hesselberg, Mark Kartman, Gerald Anderson, Denny Reger, Togerson, Wa de, Krachey, Russel Bausch, and Kulmin violated his right under the Eighth Amendment by failing to provide plaintiff with humane conditions of confinement between November 1, 2010, and January 4, 2011.(c) defendant David Bown violated his rights u nder the First Amendment by improperly delaying his legal mail. Defendant John Paquin is DISMISSED. Plaintiff's motions for assistance in recruiting counsel (dkt. ## 32 , 42 ) are DENIED without prejudice. Defendants' motion for screening and for extension of time to respond to plaintiff's amended complaint (dkt. # 38 ) is GRANTED. Signed by District Judge William M. Conley on 4/6/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
MICHAEL J. DETTLAFF,
Plaintiff,

OPINION AND ORDER

v.
15-cv-463-wmc
PRAIRIE DU CHIEN CORRECTIONAL INSTITUTION, et al.,
Defendants.

On May 18, 2017, the court granted pro se plaintiff Michael J. Dettlaff leave to proceed
on claims under the Eighth and Fourteenth Amendments against defendants Paquine, Wayne
and Skim for requiring him to sleep on the floor of a cold cell, as well as a First Amendment
claim against defendant Bailey for delaying the delivery of legal mail. At the same time,
plaintiff was denied leave to proceed on an additional Eighth Amendment conditions of
confinement claim related to his cell because he failed to name any individual defendants who
were aware of, but failed to correct, the conditions in his cell. Plaintiff has since filed an
amended complaint, which is before the court for screening pursuant to 28 U.S.C. § 1915A,
along with plaintiff’s two pending motions for assistance in recruiting counsel. (Dkt. ##32,
42.)

For the reasons that follow, the court will grant plaintiff leave to proceed against

additional defendants, but deny his motions for assistance in recruiting counsel.

I.

Screening of Amended Complaint (dkt. ##33, 38)
In the amended complaint, Dettlaff proposes three substantive changes, which the court

will address in turn.
A.

Paragraph 8

In paragraph 8, Dettlaff seeks to substitute defendant Gary Boughton for defendant

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John Paquin. Dettlaff explains that he was mistaken in initially alleging that Paquin was the
warden of Prairie du Chien Correctional Institution (“PDCI”) during the relevant time period.
After discovery revealed that Boughton was the warden, and that he was the one who denied
Dettlaff’s appeal of his conduct report disposition, thus affirming his charge and punishment,
he now seeks this change. For the reasons already explained in the court’s initial leave to
proceed order, Dettlaff will be granted leave to proceed against Boughton on his Fourteenth
and Eighth Amendment claims, and Paquin will be dismissed from this lawsuit.
B.

New paragraph 11

In the leave to proceed order, the court denied Dettlaff leave to proceed on an Eighth
Amendment conditions of confinement claim related to allegations that between November 1,
2010, and January 4, 2011, he was housed in a cold cell with another inmate, lacked adequate
clothing and bedding, and was forced to sleep on a concrete floor, having failed to identify any
defendant who was aware of these conditions and failed to take steps to address them. Now,
in his first amended complaint, Dettlaff adds a new paragraph 11, which names, as additional
defendants, the supervisory staff of the segregations units between November 1, 2010, and
January 4, 2011: Tonja Hesselberg, Mark Kartman, Gerald Anderson, Denny Reger, Togerson,
Wade, Krachey, Russel Bausch, and Kulmin. Detlaff states that these staff members were all
scheduled to supervise his unit between November 1, 2010, and January 4, 2011, and thus
were obliged to transfer him to an unoccupied individual cell but failed to do so. Given the
court is obligated to view all of Dettlaff’s allegations in his favor at screening, Perez v. Fenoglio,

792 F.3d 768, 774 (7th Cir. 2015), I will grant Dettlaff leave to proceed on a conditions of
confinement claim against these defendants.
While Dettlaff fails to allege that any of these defendants actually saw that he was

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sleeping on concrete or that an unoccupied cell was, in fact, available between November 1 and
January 4, he does allege that each of these individuals were scheduled to work as a supervisor
in the segregation unit during this time period. Thus, at this stage, it is reasonable to infer that
each of these individuals witnessed (or should have witnessed) the conditions of Dettlaff’s
segregation cell that required him to sleep on a concrete floor, as well as the fact that Dettlaff
remained in those conditions, which further supports an inference that none of them took any
steps to change those conditions. Accordingly, I will grant him leave to proceed against these
defendants.
That said, as Dettlaff proceeds with his claim, he should be aware his obligation to prove
each of these defendants individual indifference, which will be much more difficult than his
obligation to state a claim against them. Indeed, he will be required to submit proof that each
of these individuals actually were aware of: his sleeping arrangements; lack of recreation, proper
clothing and bedding; and the strobe-like lighting. He will also have to prove each individual
failed to take reasonable steps to address those issues.
C.

Additional legal mail defendant

Finally, Dettlaff seeks to add David Bowen as a defendant to his First Amendment
claim, alleging that he worked in the mail room and involved in the protracted delay in
providing Dettlaff’s legal mail. (Id. ¶ 22.) Dettlaff specifically alleges that Bowen handed him
his legal mail after he was released from solitary confinement, and the property receipt included
both Bowen’s signature and the date the mail was delivered to PDCI, which was two months
before Dettlaff received it. As these allegations permit the inference that Bowen received
Dettlaff’s legal mail, but failed to take steps to ensure he received it timely, the court will permit
him leave to proceed against Bowen as well.

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II.

Motions for assistance in recruiting counsel (dkt. ##32, 42)
Dettlaff also renewed his request for assistance in recruiting counsel in two motions,

stating that: he is indigent; his imprisonment limits his ability to litigate this case; he lacks
legal expertise; and this case requires expert testimony and locating witnesses. As an initial
matter, before a district court can consider a request for counsel, it must find that the plaintiff
(1) made reasonable efforts to find a lawyer on his own and was unsuccessful or (2) was
prevented from making such efforts. Jackson v. County of McLean, 953 F.2d 1070 (7th Cir.
1992). To prove that he has made reasonable efforts to find a lawyer, Dettlaff must give the
court the names and addresses of three lawyers who denied his request for representation.
Having submitted several rejection letters, Dettlaff has met this initial requirement.
Because pro se litigants who file lawsuits in this district outnumber the lawyers willing
and able to provide representation, however, the court still cannot find a lawyer for every
litigant who requests one. Thus, assistance in recruiting counsel is appropriate only when the
plaintiff demonstrates his case is one of those relatively few in which it appears from the record
that the legal and factual difficulty exceeds his ability to prosecute it. Pruitt v. Mote, 503 F.3d
647, 654-55 (7th Cir. 2007). Obviously, this is a different question than whether a lawyer
might do a better job.
To date, Dettlaff’s filings in this lawsuit have been clear, well-organized and
demonstrate an understanding of the relevant facts and law, and there is no evidence in his
filings that this case is too difficult for him to prosecute on his own. Additionally, since filing
these motions, Dettlaff has informed the court that he has been released from custody, and
thus, he now has better access to research materials and other resources to litigate this case,
which includes the chance for him to locate an expert witness on his own. Indeed, the court

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has granted him an extension of expert disclosure deadline to accommodate his wish to find an
expert. Since Dettlaff has shown not just the willingness to litigate this case on his own, but
also the ability to do so, the motion will be denied without prejudice. Of course, Dettlaff may
renew his motion should this case become more complex than it would now appear.

ORDER
IT IS ORDERED that:
(1)

In addition to the claims outlined in the leave to proceed order (dkt. #19, at
10), plaintiff Michael J. Dettlaff is GRANTED leave to proceed on claims that:
(a)

defendant Gary Boughton violated his rights to procedural due process
under the Fourteenth Amendment and proportional punishment under
the Eighth Amendment by sentencing him to a lengthy term of
segregation for a trivial violation.

(b)

defendants Tonja Hesselberg, Mark Kartman, Gerald Anderson, Denny
Reger, Togerson, Wade, Krachey, Russel Bausch, and Kulmin violated
his right under the Eighth Amendment by failing to provide plaintiff with
humane conditions of confinement between November 1, 2010, and
January 4, 2011.

(c)

defendant David Bown violated his rights under the First Amendment by
improperly delaying his legal mail.

(2)

Defendant John Paquin is DISMISSED.

(3)

Plaintiff’s motions for assistance in recruiting counsel (dkt. ##32, 42) are
DENIED without prejudice as set forth above.

(4)

Defendants’ motion for screening and for extension of time to respond to
plaintiff’s amended complaint (dkt. #38) is GRANTED.

Entered this 6th day of April, 2018.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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