Schmidt, Harry v. Oshkosh Correctional Institution

Filing 40

ORDER denying plaintiff Harry Schmidt's motions for restraining orders (dkts. 4 , 28 ). Schmidt's motion to appoint Theodore Nanz as attorney in this case (dkt. 32 ) is DENIED. Schmidt may have until November 21, 2016, to amend his comp laint to name proper defendants. Any amended complaint will be screened in accordance with 28 U.S.C. § 1915A. Defendant Oshkosh Correctional Institution is DISMISSED from this lawsuit. Signed by Magistrate Judge Stephen L. Crocker on 11/7/2016. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF W ISCONSIN
H ARRY G. S CHM IDT , JR.
Plaintiff,

OPINION and ORDER

v.
Case No. 16-cv-30-slc
O SHKOSH C ORRECTIONAL I NSTITUTION ,
Defendant.

Plaintiff

Harry

Schmidt

filed

this

proposed

civil

action

under

42

U.S.C.

§ 1983claiming that he was denied medical care related to a back injury and his breathing
problems while incarcerated at Oshkosh Correctional Institution (“OCI”). (Dkt. 1). Schmidt
then filed a document labeled “Amendment Complaint” (dkt. 20), which the court will
construe it to be a supplement to his complaint. The parties consented to magistrate judge
jurisdiction, and on November 3, 2016, this case was reassigned to me. (Dkt. 36.) Schmidt’s
complaint now is ready for screening under 28 U.S.C. § 1915A.1

Schmidt alleges facts

sufficient to state an Eighth Amendment claim, but he has not named a proper defendant.
Schmidt must name a proper defendant before this court will grant him leave to proceed.
Schmidt has some other requests that I will address below. He filed two motions for
restraining orders (dkts. 4, 28), as well as several letters requesting release from prison, all of
which I am denying. Finally, Schmidt filed a letter asking that Theodore Nanz be appointed
as an attorney for his case. (Dkt. 22.) I am denying that request as well.

1

Schmidt also filed a document labeled “M y Statement” (dkt. 7). This document, which Schmidt also
filed as a supplement to his habeas petition, see Schmidt v. W isconsin, No. 16-cv-31-wmc, dkt. 5 (W .D.
W is. Jan. 15, 2016), appears to include his statements related to the crime for which he is currently
incarcerated. Because th instant case is about the treatment that Schmidt received during his
incarceration, I am disregarding the “M y Statement” document for purposes of screening.
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ALLEGATIONS OF FACT 2
Schmidt currently is incarcerated at OCI. In his complaint, OCI is the only defendant
he names.

Schmidt alleges that on July 23, 2015, he went to the Health Services Unit

(“HSU”) because he had fallen out of bed and hurt his back.

Schmidt told an unnamed

nurse about his fall, but she did not give him any medical treatment or provide any x-rays.
Instead, she denied his request to see a doctor and gave him a muscle rub and exercises.
On another occasion, a nurse practitioner named Bowen denied Schmidt access to a
Continuous Positive Airway Pressure (“CPAP”) machine, which Schmidt requested because
he has a sleep disorder that causes him to stop breathing. Schmidt claims that, as a result of
the nurse and nurse practitioner denying his requests, his back hurts when he walks up stairs
and when he tries to sleep, and that he gets very little sleep because he is afraid that he will
stop breathing because he does not have a CPAP machine.

OPINION
Schmidt does not actually cite to the Eighth Amendment in his complaint, but it
would be the correct constitutional provision to cite because it does not allow prison officials
to be “deliberately indifferent” to a “serious medical need.” Estelle v. Gamble, 429 U.S. 97,
104-05 (1976).

A “serious medical need” is a condition that a doctor has recognized as

needing treatment, or a condition so obvious that even a lay person would recognize the need
for medical treatment. Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). “Deliberate
2

In addressing any pro se litigant’s complaint, the court must read the allegations generously. Haines v.
Kerner, 404 U.S. 519, 521 (1972). For purposes of this order, the court assumes the facts above based
on the allegations in Schmidt’s complaint.
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indifference” means that prison health care providers (and sometimes other prison officials)
are aware that the prisoner actually needs medical care, but they choose not to provide
reasonable treatment. Forbes v. Edgar, 112 F.3d 262, 266 (7th Cir. 1997).
Schmidt cannot go forward with his complaint the way he wrote it because the only
defendant he has named is OCI, his correctional institution.

Claims brought under the

Eighth Amendment pursuant to 42 U.S.C. § 1983–like Schmidt’s claim here–must be alleged
against “persons.” A correctional institution is not a “person.”
must dismiss OCI as a defendant.

This means that this court

See Will v. Michigan Dep’t of State Police, 491 U.S. 58

(1989).
But, based on Schmidt’s allegations against the unnamed nurse and nurse practitioner
Bowen, I will give Schmidt the opportunity to amend his complaint by adding them as
defendants. Schmidt alleges that the unnamed nurse knew that Schmidt had hurt his back in
a fall but she refused to let him have an x-ray and refused to let him see a doctor. These
allegations, paired with Schmidt’s claims of continued back pain, are enough to state a claim
that the unnamed nurse ignored Schmidt’s serious medical needs.

Similarly, Schmidt’s

allegations that Bowen denied his request for a CPAP machine, denied his request for x-ray
and denied his request see a doctor despite Bowen’s knowledge as to why Schmidt was
making this requests are enough to state a claim that Bowen was deliberately indifferent to
Schmidt’s reports that he stopped breathing when he slept and that his back was injured.
Accordingly, the court will permit Schmidt the opportunity to amend his complaint to add
Bowen and the unnamed nurse as defendants.

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Moving on, Schmidt has asked this court to issue restraining orders requiring the
W isconsin Department of Corrections to release him from custody to live with his mother or
at a place close to his family.

To obtain a restraining order or a preliminary injunction,

Schmidt must show: (1) a likelihood of success on the merits of his case; (2) a lack of an
adequate remedy at law; and (3) an irreparable harm that will result if the injunction is not
granted. Lambert v. Buss, 498 F.3d 446, 451 (7th Cir. 2007). If Schmidt were to meet these
three requirements, then the court would balance the harm to Schmidt from denying the
motion against the harm to the DOC and the State from granting the motion. Id. The court
also must consider the “public interest in granting or denying an injunction.” Id.
Schmidt’s motions fail at step one: he has not established that his claim is likely to
succeed on the merits. Schmidt alleges that his medical needs have been treated poorly and
that he gets bullied by prison staff and other inmates, but Schmidt has not provided any
factual support for his claims, he has not explained how the DOC has violated any of his
federal rights and he has not shown why the appropriate remedy would be release from state
custody. Accordingly, I am denying Schmidt’s motions.
Finally, Schmidt asks this court to appoint Attorney Theodore Nanz to represent him
in this lawsuit.. Schmidt states that he does not have money to pay Nanz now, but that he
will pay Nanz after he wins this case. I am denying this motion also. First, this court never
“orders” any lawyer to represent a pro se plaintiff in a civil case.

Instead, in the right

circumstances, the court will recruit a volunteer attorney for a pro se plaintiff. The court will
recruit counsel only if it determines that (1) the plaintiff has made reasonable attempts to

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hire a lawyer on his own but has failed and (2) the complexity of the case exceeds the
plaintiff’s ability to litigate it on his own. See Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir.
2007) (setting forth standard for appointment of counsel). Schmidt has not shown either of
these things, at least not yet.
If Attorney Nanz wants to represent Schmidt in this civil lawsuit, then Nanz can make
arrangements with Schmidt to do so and then file a notice of appearance with the court. But
this court will not order Nanz to represent Schmidt this case. At this point, it is too early for
this court even to check with Attorney Nanz to see if he has interest whatsoever

in being

Schmidt’s volunteer attorney. If we ever get to that point, then Attorney Nanz would be free
to say “no” and that would be the end of it.
But we aren’t to that point yet. After Schmidt has filed an amended complaint and
this case has moved a few steps forward through the litigation process, then Schmidt may file
a motion asking for court assistance in recruiting a lawyer.

Before Schmidt files such a

motion, he must try to find an attorney on his own. If three attorneys say “no” to Schmidt,
then he can file his motion, in which he must provide the names and addresses of the three
attorneys who have declined to represent him in this case.

Schmidt also would have to

explain why he cannot litigate the case on his own. If we get to that point, then the court
would evaluate whether there is a need to recruit a volunteer attorney to assist Schmidt.3

3

This court would find a volunteer attorney for every pro se prisoner plaintiff if the court had enough
volunteer attorneys to go around. But the court gets about 250 to 300 lawsuits from pro se plaintiffs
every year and we only have about 30 volunteer attorneys who will take one case per year. I mention
this only to make clear to Schmidt that this is not about making him jump through unnecessary hoops,
and it’s not about the court holding out on him for no logical reason. This court has no choice except
to match up its volunteer attorneys with the pro se plaintiffs who need them the most.
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ORDER
IT IS ORDERED that:
1.

Plaintiff Harry Schmidt’s motions for restraining orders (dkts. 4, 28) both are
DENIED.

2.

Schmidt’s motion to appoint Theodore Nanz as attorney in this case (dkt. 32)
is DENIED.

3.

Schmidt may have until November 21, 2016, to amend his complaint to name
proper defendants. Any amended complaint will be screened in accordance
with 28 U.S.C. § 1915A.

4.

Defendant Oshkosh Correctional Institution is DISMISSED from this lawsuit.

5.

If Schmidt does not file an amended complaint as directed, then this case will
be dismissed and Schmidt will receive a STRIKE pursuant to 28 U.S.C.
§ 1915(g) for failure to state a claim upon which relief will be granted. See §
1915(g) (barring a prisoner with three or more “strikes,” or dismissals for filing
a civil action or appeal that is frivolous, malicious, or fails to state a claim, from
bringing any more actions or appeals in forma pauperis unless he is in imminent
danger of serious physical injury).

Entered this 7 th day of November 2016.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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