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Dennis v. Picknell

United States District Court, W.D. Wisconsin

August 18, 2016



          JAMES D. PETERSON District Judge.

         Plaintiff Matthew Dennis, a prisoner in the custody of the Wisconsin Department of Corrections currently housed at the Jackson Correctional Institution, brings Eighth Amendment and state law negligence claims that officials from the DOC and from Walworth County failed to protect him from harm while he was temporarily housed at the Walworth County Jail. The parties have filed several motions that I will address in this order, chief among them defendant Michael Dittman’s motion to dismiss plaintiff’s claims against him, and defendants Kurt Picknell and Walworth County’s motion for summary judgment based on plaintiff’s failure to exhaust his administrative remedies. I will grant both of these motions, leaving only plaintiff’s state law negligence claim against Picknell, which I will dismiss without prejudice.

         A. Motion for provision of legal loan funds or use of release account

         Plaintiff has filed a motion asking for a court order granting him a legal loan or use of his release account funds. Dkt. 18. He says that after losing his prison job, he has no income and thus no way to pay for postage or supplies. Defendant Dittman counters that plaintiff has not even applied for a legal loan. But regardless of plaintiff’s legal loan status, it is generally this court’s policy to not interfere with the state’s legal loan program, and only in rare cases does the court take up the issue of a plaintiff using release account funds. In an extreme circumstance, the court might intervene to ensure that an incarcerated plaintiff has adequate postage and writing materials to access the court. But based on the various materials plaintiff has filed, there is nothing to suggest that plaintiff has had insufficient resources to litigate this case. Accordingly, I will deny this motion, without prejudice to plaintiff renewing it if circumstances change.

         B. Motion for assistance in recruiting counsel

         Plaintiff has filed a motion for the court’s assistance in recruiting him counsel. Dkt. 21. 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 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 does not explain whether he has attempted to find outside counsel, which is reason enough to deny his motion.

         Even if plaintiff had shown that he made reasonable efforts to find counsel, I would deny his motion because he has not met the second requirement for assistance in recruiting counsel: demonstrating 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). As discussed below, I will dismiss this case because plaintiff cannot bring colorable claims against defendant Dittman, he failed to comply with Wisconsin’s notice-of-claim laws, and he failed to exhaust his administrative remedies. These are not defects that recruitment of counsel could have fixed at this point in the proceedings. Therefore, I will deny his motion for recruitment of counsel.

         C. Defendant Dittman’s motion to dismiss

         Defendant Michael Dittman, the warden of the Columbia Correctional Institution (where plaintiff was housed when he filed the complaint), has filed a motion to dismiss plaintiff’s claims against him. In screening the complaint, I characterized plaintiff’s claims against Dittman as follows:

As for defendant Dittman, he oversees a separate DOC prison; it is not clear why plaintiff believes that Dittman should be held responsible for the policies at the Walworth County Jail. He cannot be held liable for failing to protect him from the attack itself because there is no indication that he was aware of the danger facing plaintiff before the attack. But plaintiff also alleges that Dittman denied his grievance after the attack, which suggests that Dittman turned a blind eye to the danger facing plaintiff following the attack. At this point I can reasonably assume that Dittman could have forced a transfer or taken other action in response to the danger made clear by the attack, so I will allow plaintiff to proceed on an Eighth Amendment claim against Dittman as well.

Dkt. 7, at 4 (emphasis in original).

         Defendant Dittman contends that plaintiff cannot maintain an Eighth Amendment failure to protect claim against him because plaintiff’s allegations suggest only negligence, he was not personally involved in the harm befalling plaintiff, he cannot be held responsible for events occurring at a county jail, and the denial of plaintiff’s grievance is not enough to state a constitutional claim. I will grant defendant Dittman’s motion to dismiss plaintiff’s Eighth Amendment claim, but for a slightly different reason than those articulated by Dittman in his brief.

         As discussed above, plaintiff’s claim is not that Dittman should be responsible for the completed attack against him. I allowed him to proceed on a claim that Dittman turned a blind eye to the danger facing plaintiff after he was made aware of the danger by reviewing plaintiff’s grievance. At the screening (or motion to dismiss) stage, I could not rule out a claim against Dittman based on the fact that the danger to plaintiff was at a different facility than the one Dittman ran, or on the fact that Dittman found out about the danger through a grievance; there is a reasonable inference from plaintiff’s allegations that Dittman might have been able to exercise control over plaintiff’s short-term assignment at the county jail.

         Nonetheless, plaintiff’s inability to bring a claim against Dittman for the actual assault he suffered leaves only the future danger he faced at the jail. Plaintiff’s allegations do not suggest that once Dittman because aware of the danger facing plaintiff, the danger ever materialized again before plaintiff was transferred back to state custody. So by the time plaintiff filed his complaint in this court, he had not suffered harm as a result of Dittman’s failure to take any action on plaintiff’s grievance. Nor was this a situation in which plaintiff faced impending danger at his current facility. All plaintiff says is that he faced the threat of possible danger after the first attack. But plaintiff cannot maintain a claim for “failure to prevent exposure to risk of harm” rather than a ...

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