Flakes, Joel v. Litscher, Jon et al

Filing 28

ORDER that that plaintiff Joel Flakes is DENIED leave to proceed on the additional claims outlined in his proposed amended complaint. (Dkt. 21 .) Defendants are not required to file an answer to Flakes' amended complaint, since Flakes may not proceed on any additional claims, or against any additional defendants. Signed by District Judge William M. Conley on 5/5/2020. (rks),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JOEL SCOTT FLAKES,
Plaintiff,

OPINION AND ORDER

v.
17-cv-237-wmc
JON E. LITSCHER, et al.
Defendants.
Plaintiff Joel Scott Flakes, an inmate at Stanley Correctional Institution (“Stanley”)
who is wheelchair-bound, filed this lawsuit against certain Stanley employees and
employees of the Wisconsin Department of Corrections (“DOC”), challenging their
handling of his request for a personal care attendant (“PCA”). The court granted Flakes
leave to proceed on claims under the Fourteenth Amendment’s equal protection clause,
Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12131 et seq. and Rehabilitation
Act, 29 U.S.C. § 701 et seq., Now before the court is Flakes’ proposed amended complaint
(dkt. #21), which requires screening under 28 U.S.C. § 1915A. For the reasons that follow,
Flakes will not be allowed to proceed on the additional claims.

OPINION
In his amended complaint, Flakes does not propose any new allegations related to
the defendants’ denial of his request for a PCA, nor does he include all of the allegations
from his original complaint. Instead, Flakes appears to elaborate on his existing claims,
while adding that he believes defendants violated his Eighth and Fourteenth Amendment
rights. At this stage in the lawsuit, the court typically allows parties to amend freely as
justice requires, see Fed. R. Civ. P. 15(a)(2), and will do so here with respect to any

elaboration on his existing claims (without requiring defendants to replead), but because
Flakes has not alleged any new facts and his allegations do not support the newly proposed
claims, the court will not grant Flakes leave to proceed on any additional claims on the
basis of futility. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (court
may deny leave to amend where “the amendment would be futile”).

I. Eighth Amendment
Flakes claims that defendants acted with deliberate indifference to his need for an
accommodation for his disability, but his allegations do not support this Eighth
Amendment claim.

The Eighth Amendment’s prohibition against cruel and unusual

punishment imposes upon prison officials the duty to provide prisoners “humane
conditions of confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To succeed on
an Eighth Amendment claim challenging conditions of confinement in particular, a
plaintiff must prove that: (1) the conditions of confinement were objectively serious, such
that they deprive inmates of the minimal civilized measure of life’s necessities; and (2) the
defendant knew about, but failed to take reasonable measure to prevent the potential harm
of that condition. Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999) (citing Farmer,
511 U.S. at 834.)
Additionally, a prison official may violate the Eighth Amendment in the context of
a prisoner’s medical treatment by acting with “deliberate indifference” to a “serious medical
need.” Estelle v. Gamble, 429 U.S. 97, 104-05 (1976); Forbes v. Edgar, 112 F.3d 262, 266
(7th Cir. 1997). “Serious medical needs” include: (1) life-threatening conditions or those
carrying a risk of permanent serious impairment if left untreated; (2) withholding of

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medical care that results in needless pain and suffering; or (3) conditions that have been
“diagnosed by a physician as mandating treatment.” Gutierrez v. Peters, 111 F.3d 1364,
1371 (7th Cir. 1997).
Flakes’ allegations in his complaint do not support a claim under either theory.
Flakes has not alleged that his conditions of confinement subjected him to a substantial
risk of harm or denied him any of life’s necessities. Nor has Flakes alleged that he suffers
from a serious medical need. More importantly, Flakes’ allegations do not suggest that any
of the defendants consciously disregarded a serious medical need or constitutionally infirm
conditions of confinement. Accordingly, the court will not grant Flakes leave to proceed
on an Eighth Amendment deliberate indifference claim.

II. Fourteenth Amendment
Flakes also asks that his Fourteenth Amendment discrimination claim be expanded
to include a due process claim. To succeed on this claim, plaintiff must prove that: (1) he
has a liberty or property interest with which the state interfered; and (2) the procedures he
was afforded upon that interference were constitutionally deficient. Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989); Marion v. Columbia Corr. Inst., 559 F.3d 693, 697
(7th Cir. 2009); Scruggs v. Jordan, 485 F.3d 934, 939 (7th Cir. 2007). In the Seventh
Circuit, “a liberty interest may arise if the length of segregated confinement is substantial
and the record reveals that the conditions of confinement are unusually harsh.” Marion v.
Columbia Corr. Inst., 559 F.3d 693, 697-98 (7th Cir. 2009). Courts in this circuit have
generally concluded that short-term placements in segregation -- typically less than six
months -- do not involve a liberty interest. However, longer periods of segregation do

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require inquiry into the conditions to determine if they impose an “atypical, significant”
hardship. Id. at 697 (citing Wilkinson v. Austin, 545 U.S. 209, 214, 224 (2005) (prisoners’
liberty interests implicated when placed in segregation depriving them of virtually all
sensory stimuli or human contact for an indefinite period of time)).
Flakes may not proceed on a due process claim because his allegations do not
support a reasonable inference that he suffered a loss of liberty when his request for a PCA
was denied. Although Flakes may not have been able to access all of the programs and
facilities offered within Stanley because he is wheelchair-bound and lacking full assistance,
Flakes has not alleged facts suggesting that he was subjected to conditions akin to the
conditions of segregation, nor has Flakes otherwise identified how he suffered the loss of a
property interest because his request for a PCA was denied. Accordingly, having failed to
allege facts supporting a reasonable inference that he suffered a loss of a liberty interest,
Flakes may not proceed on a due process claim.

ORDER
IT IS ORDERED that plaintiff Joel Flakes is DENIED leave to proceed on the
additional claims outlined in his proposed amended complaint. (Dkt. #21.) Defendants
are not required to file an answer to Flakes’ amended complaint, since Flakes may not
proceed on any additional claims, or against any additional defendants.
Entered this 5th day of May, 2020.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge

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