Juarez, Elpidio v. Walter, Carroll et al

Filing 1

ORDER severing plaintiff Elpidio Juarez's claims from case 14-cv-414-jdp. The $45.41 initial partial payment received by Juarez in case 14-cv-747-jdp shall be applied to this new case. Signed by District Judge James D. Peterson on 3/22/2016. (elc),(ps)

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

ROBERT STEED, MAFAYETTE FIELDS,
LAWRENCE NORTHERN, JAMES PITTMAN,
and ELPIDIO JUAREZ,
Plaintiffs,
v.
JOHN DOE A-UNIT 3RD SHIFT OFFICER,
C/O BURKE, C/O HOLSCLAW, C/O LIEBL,
UNKNOWN 3RD SHIFT SEGREGATION OFFICER,
C/O THILL, KOREEN FRISK, TONI JOHNSON,
RN JULIE, CANDANCE WARNER,
ANTHONY HENTZ, CARROL WALTER,
JEAN FELBER, and JOHN OR JANE DOE, OF THE
RESTRICTIVE STATUS HOUSING UNIT,

OPINION & ORDER
14-cv-747-jdp

Defendants. 1
Plaintiffs Robert Steed, Mafayette Fields, Lawrence Northern, James Pittman, and
Elpidio Juarez are prisoners in the custody of the Wisconsin Department of Corrections.
They have submitted a civil complaint under 42 U.S.C. § 1983, alleging that prison officials
at the New Lisbon Correctional Institution maintained and followed a policy giving
correctional officers, rather than medical staff, responsibility over medication distribution,
leading to intentional or negligent failures to properly provide plaintiffs with their
medications.
Although plaintiffs have joined their claims in one complaint, each of them must pay
the full amount of the filing fee for this action. Boriboune v. Berge, 391 F.3d 852, 856 (7th Cir.
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The caption reflects the parties named in plaintiffs’ amended complaint, Dkt. 17. I have
amended the names of plaintiff Pittman and defendant Hentz to reflect the spellings
prevalent in the complaint, as opposed to the names that appear to be misspelled in the
caption.

2004). Each of the plaintiffs moves to proceed in forma pauperis, and each of them has made
an initial partial payment of their respective filing fee as calculated by the court.
Plaintiffs have filed a motion to amend the complaint, Dkt. 16, and an amended
complaint, Dkt. 17. I will grant the motion to amend and treat the amended complaint as the
operative pleading. In screening the amended complaint, I must dismiss any portion that is
legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for
money damages from a defendant who by law cannot be sued for money damages. 28 U.S.C.
§§ 1915 and 1915A. In screening these pro se litigants’ complaint, the court must read the
allegations of the complaint generously. See Haines v. Kerner, 404 U.S. 519, 521 (1972).
After considering plaintiffs’ allegations, I will allow them to proceed on their claims
that are plausibly connected to the policy giving correctional officers responsibility over the
medications. Because plaintiff Juarez’s claims are not plausibly connected to the policy, I will
sever his claims into a new lawsuit. Plaintiffs Steed and Northern, who have some claims
plausibly connected to the policy and others that are not, will be given a chance to explain
how they wish to proceed.

ALLEGATIONS OF FACT
Plaintiffs are bringing this lawsuit together because they believe that the incidents
they describe below are all related. All of the plaintiffs were housed at the New Lisbon
Correctional Institution (NLCI), and all of their allegations concern events taking place at
NLCI. I will address each plaintiff’s allegations separately.

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A. All plaintiffs
The provision of medication to prisoners at NLCI is supervised by defendant Nurse
Warner, the manager of the Health Services Unit. Plaintiffs believe that Warner’s policy of
having correctional officers distribute medications rather than nurses has led to the many
problems documented below.
B. Plaintiff Northern
At some point in 2013, plaintiff Lawrence Northern filed a grievance against
defendant Nurse Toni Johnson “complain[ing] about medical care.” On May 9, 2013,
Northern had surgery on one of his Achilles tendons, leaving a five-inch incision. Northern
was prescribed daily changes of the dressing for this wound. Defendant Nurse Frisk
completed a “Medical Restrictions/Special Needs” form setting up daily appointments in the
Health Services Unit (HSU) for Northern to have his dressing changed. However, “on several
occasions,” defendant Nurse Johnson refused to change Northern’s dressing in retaliation for
him filing his previous grievance. Johnson told Northern to “put in a blue slip” even though
he already had documentation authorizing the treatment. Because of the failure to change the
dressing, Northern suffered pain and disfigurement.
Northern also alleges that he was prescribed Vicodin to treat his severe pain following
the surgery. However, several times in the week following the surgery, defendant correctional
officers John Doe A-Unit Third Shift Officer, Holsclaw, and Liebl would not administer the
medication, leaving him to suffer severe pain.
C. Plaintiff Pittman
Plaintiff James Pittman has been diagnosed with “Dysthymic disorder,” which is a
type of long-term depression. A psychiatrist prescribed Pittman 60 milligrams of Mirtazapine

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(two 30-milligram tablets) to be taken at bedtime. Nine times in 2014, defendant
correctional officers Burke, Liebl, and Thill gave Pittman 105 milligrams of Mirtazapine (two
30-milligram tablets and one 45-milligram tablet). The extra medication caused Pittman
lightheadedness, impaired vision, headaches, and dizziness.
D. Plaintiff Fields
Plaintiff Mafayette Fields suffers from painful muscle twitches and restless leg
syndrome, which he appears to be saying are caused by multiple sclerosis or Hutchinson’s
disease. Fields was prescribed Baclofen and Pramipexole.
On June 11, 2014, Fields was denied his medication by segregation unit staff. At 3:00
p.m., defendant correctional officer Holsclaw told Fields that she contacted defendant Nurse
Frisk to ask about his medication but that it “did not arrive yet.” At 9:30 p.m., Fields pressed
the emergency call button in his cell, and a sergeant told him that the medication had still
not arrived. At 10:30 p.m., Fields pushed the emergency call button again. Defendant
correctional officer Burke told Fields that defendant Frisk had left for the day and that Fields
“could take his medication tomorrow.” The failure to provide Fields with his medication
caused him sleep deprivation and severe pain. Fields also went without his medication on July
20 and 21, 2014.
E. Plaintiff Steed
Plaintiff Robert Steed suffers from hypertension. I take Steed to be saying that he was
prescribed Hydrochlorothiazide and Metoprolol to treat this malady, but that between July
15 and 23, 2014, defendant Nurse Julie B. did not give him that medication, causing him
headaches, swelling of the ankles, and “dangerously high” blood pressure.

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Also, while Steed was in the Restrictive Status Housing Unit (RSHU), John and Jane
Doe staff members (who I infer to be correctional officers) failed to give Steed his prescribed
Hydrochlorothiazide, Tylenol, and Vitamin D several times between January 7 and January
15, 2015. They are responsible for informing medical staff about the inventory of items on
the medication chart so that they can be refilled when necessary. Steed believes that their
failure to perform this task resulted in the deprivation of medications.
F. Plaintiff Juarez
Plaintiff Elpidio Juarez does not explain what malady he suffers from, but he was
prescribed Gabapentin, an anticonvulsant used to treat seizures and pain. On February 13,
2015, defendant Nurse Carroll Walter told Juarez that his medication had arrived and that
he could start taking it. But contrary to prison policy, she did not explain any of the side
effects. Juarez was not aware that Gabapentin can cause dizziness, lack of balance, and
drowsiness.
The next day, Juarez became dizzy and ill. Defendant Nurse Jean Felber told Juarez
that this was a normal side effect and to drink more water. Felber did not examine him or
schedule him to see a doctor. Later that day, Juarez became dizzy at the top of a flight of
stairs, blacked out, and fell down the stairs. He was taken to the hospital. He now suffers
from chronic back pain.
On April 10, 2015, Juarez was seen by defendant Nurse Anthony Hentz, who told
Juarez that he would be starting a new medication, “Tamiramate.” (My own research did not
reveal any drug by that name; but perhaps the new drug is Topiramate, another anticonvulsant.) As with his Gabapentin, defendant Hentz did not inform Juarez about any of

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the side effects. Juarez does not explain what happened afterward, but he states that his
failure to be informed of the side effects led to a serious physical injury.

ANALYSIS
A. Multiple plaintiffs and defendants
This case involves claims brought by multiple plaintiffs against multiple defendants.
Under Federal Rule of Civil Procedure 20(a)(1), multiple people may join in one action as
plaintiffs if they assert a right to relief “arising out of the same transaction, occurrence, or
series of transactions or occurrences; and any question of law or fact common to all plaintiffs
will arise in the action.” Similar language in Rule 20(a)(2) allows a plaintiff or plaintiffs to
join defendants in a single lawsuit if all of the defendants were involved in the same alleged
wrongdoing. Under Federal Rule of Civil Procedure 18, plaintiffs may then join individual
unrelated claims against defendants who are already properly joined under Rule 20. Pace v.
Timmermann’s Ranch & Saddle Shop Inc., 795 F.3d 748, 755 n.10 (7th Cir. 2015). The district
court has wide discretion concerning the joinder of parties. Chavez v. Ill. State Police, 251 F.3d
612, 632 (7th Cir. 2001).
Plaintiffs’ allegations generally concern separate incidents against discrete sets of
defendants, which would usually be reason not to allow them to bring claims about those
incidents together in a single lawsuit. But plaintiffs contend that all of their claims may be
brought together because they all relate to a policy created by defendant Health Services
Manager Warner that allows correctional officers to dispense and keep track of medications
rather than having nurses or other medical staff do so. Plaintiffs argue that Warner has acted

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with deliberate indifference toward their problems because it can be inferred that she is aware
the problems caused by this system.
For the most part, I agree with plaintiffs’ position that their claims may be joined
together. Many of their claims are at least arguably related to the policy granting correctional
officers responsibly to distribute and track medications. Those claims are:
•

Northern’s claims that defendant correctional officers Doe A-Unit Third Shift
Officer, Holsclaw, and Liebl would not administer his medication.

•

Pittman’s claims that defendant correctional officers Burke, Liebl, and Thill
gave him higher doses of his medication than was prescribed.

•

Fields’s claims that defendant correctional officers Holsclaw and Burke and
defendant Nurse Frisk did not give him his prescribed medication.

•

Steed’s claims that defendants Doe RSHU staff members failed to give him his
prescribed medications.

I will consider these claims to be properly joined in this lawsuit under Rule 20 and screen
those claims below. If, as the case progresses, evidence submitted by the parties makes clear
that a claim is not related to defendant Warner’s policy, I may sever that claim from this
lawsuit.
But some of plaintiff’s claims do not properly belong in this lawsuit under either Rule
18 or Rule 20. Plaintiff Northern alleges that defendant Nurse Johnson retaliated against him
by not dressing his wound, plaintiff Steed alleges that defendant Nurse Julie B. did not give
him medication, and plaintiff Juarez alleges that defendant nurses Walter, Felber, and Hentz
failed to warn him about side effects of his medication that led to him being injured by falling
down the stairs. None of these claims belong in this case because there is no reasonable
inference that nursing staff’s failures have anything to do with defendant Warner’s policy
handing responsibly over medication to correctional officers. Plaintiffs contend that Warner

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acted with deliberate indifference toward them by placing correctional officers in charge of
medications rather than nurses, see Dkt. 17, at 10, so the policy cannot possibly be
responsible for the actions of the nurses themselves. 2 I will dismiss each of these defendants
from the lawsuit.
Because none of plaintiff’s Juarez’s allegations are connected to Warner’s policy, and
because he has already committed to one lawsuit by paying an initial partial payment of the
filing fee, I will sever his claims into a new lawsuit. I will screen his claims in a separate order.
Both plaintiffs Northern and Steed have claims that belong in this lawsuit but
additional claims that do not belong. The claims that do not belong in this lawsuit may be
brought in separate lawsuits. They have each paid one initial partial payment, so I will give
each of them a choice. Each of them may choose to:
•

proceed with his claims that belong in this lawsuit, in which case I will dismiss
his other claims;

•

proceed with his claims that do not belong in this lawsuit, and I will open a
new case for those claims, but dismiss his claims that are a part of this lawsuit;
or

•

proceed with both sets of claims, in which case he should submit an additional
initial partial payment of the filing fee to be assessed in his second case.

I will give plaintiffs Northern and Steed a short period of time to decide how they wish to
proceed.
B. Screening plaintiffs’ combined claims
For the claims that belong together in this lawsuit, plaintiffs allege that defendant
Warner maintains a policy granting responsibility over provision of medications to

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Also, plaintiff Northern’s retaliation claim against defendant Johnson has nothing to do
with medication.

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correctional officers instead of medical staff, which has resulted in numerous intentional or
negligent acts by correctional officers that have harmed plaintiffs. I take plaintiffs to be
raising both Eighth Amendment deliberate indifference and state-law negligence claims
against each of the remaining defendants.
The Eighth Amendment prohibits prison officials from acting with deliberate
indifference to prisoners’ serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). A “serious medical need” may be a condition that a doctor has recognized as needing
treatment or one for which the necessity of treatment would be obvious to a lay person.
Johnson v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). A medical need may be serious if it
is life-threatening, carries risks of permanent serious impairment if left untreated, results in
needless pain and suffering, significantly affects an individual’s daily activities, Gutierrez v.
Peters, 111 F.3d 1364, 1371-73 (7th Cir. 1997), or otherwise subjects the prisoner to a
substantial risk of serious harm, Farmer v. Brennan, 511 U.S. 825, 847 (1994).
At this stage of the proceedings, I will assume that each of plaintiffs’ medical
conditions is a serious medical need and that defendant Warner’s actions in maintaining the
policy and the other defendants’ actions in failing to provide medication or in overdispensing
it, plausibly shows that defendants acted with deliberate indifference toward plaintiffs. So I
will allow each of plaintiffs’ deliberate indifference claims to proceed.
Alternatively, plaintiffs allege that defendants’ actions were negligent. A negligence
claim under Wisconsin law includes the following four elements: (1) a breach of (2) a duty
owed (3) that results in (4) harm to the plaintiff. Paul v. Skemp, 2001 WI 42, ¶ 17, 242
Wis. 2d 507, 625 N.W.2d 860. I will allow plaintiffs to proceed with their negligence claims
for the same reason I am allowing them to proceed with their deliberate indifference claims.

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The one exception is any claim against defendant Nurse Frisk, who was contacted by
correctional officers Holsclaw and Burke about plaintiff Fields’s medication. Fields does not
allege that Frisk did anything to deprive him of medication (as opposed to Holsclaw and
Burke, who I understand to have been responsible for maintaining an adequate supply of
Fields’s medication), and I have already concluded that actions by nursing staff are not part
of the claims regarding Warner’s policy. I will dismiss Frisk from the case.
At the preliminary pretrial conference that will be held later in this case, Magistrate
Judge Stephen Crocker will explain the process for plaintiffs to use discovery to identify the
name of the Doe defendants and to amend the complaint to include the proper identity of
those defendants.
Finally, I note that there is a defendant named in the caption, “Unknown 3rd Shift
Segregation Officer,” who does not appear to the subject of any of plaintiffs’ claims, or is
possibly duplicative of defendant “Doe A-Unit Third Shift Officer.” I will dismiss “Unknown
3rd Shift Segregation Officer” from the case.

ORDER
IT IS ORDERED that:
1. Plaintiffs’ motion to amend the complaint, Dkt. 16, is GRANTED. Plaintiffs’
amended complaint, Dkt. 17, is the operative pleading.
2. Plaintiffs Robert Steed, Mafayette Fields, Lawrence Northern, and James Pittman
are GRANTED leave to proceed on their Eighth Amendment deliberate
indifference and state-law negligence claims that defendants Warner, John Doe AUnit Third Shift Officer, Holsclaw, Liebl, Burke, Thill, and John and Jane Doe
RSHU staff members injured them by adhering to a policy giving correctional
officers responsibility over medication distribution and failing to fulfill their
responsibilities under this policy.
3. Plaintiffs are DENIED leave to proceed on any claims against defendant Frisk.

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4. Plaintiff Juarez’s claims are SEVERED from this lawsuit. The clerk of court is
directed to open a brand-new lawsuit containing those claims. Juarez will not owe
a filing fee for the present case, and the initial partial payment of the filing fee he
has already submitted will be applied to the new case.
5. Plaintiffs Northern and Steed may have until April 12, 2016, to inform the court
how they would like to proceed with their claims that are not properly joined in
this lawsuit, as discussed in the opinion above.
6. Defendants Frisk, Unknown 3rd Shift Segregation Officer, Johnson, Julie B.,
Walter, Felber, and Hentz are DISMISSED from this lawsuit.
7. Under an informal service agreement between the Wisconsin Department of
Justice and this court, copies of plaintiffs’ amended complaint and this order are
being sent today to the Attorney General for service on defendants. Under the
agreement, the Department of Justice will have 40 days from the date of the
Notice of Electronic Filing of this order to answer or otherwise plead to plaintiffs’
complaint if it accepts service on behalf of defendants.
8. For the time being, plaintiffs must send defendants a copy of every paper or
document that they file with the court. Once plaintiffs have learned what lawyer
will be representing defendants, they should serve defendants’ lawyer directly
rather than defendants themselves. The court will disregard any documents
submitted by plaintiffs unless they show on the court’s copy that they have sent a
copy to defendants or to defendants’ attorney.
9. Plaintiffs should keep a copy of all documents for their own files. If plaintiffs do
not have access to a photocopy machine, they may send out identical handwritten
or typed copies of their documents.
10. If any of the plaintiffs are transferred or released while this case is pending, it is
that plaintiff’s obligation to inform the court of his new address. If he fails to do
this and the defendants or the court are unable to locate him, his claims may be
dismissed for his failure to prosecute them.
Entered March 22, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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