United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, District Judge
Robert Ward, a prisoner at Columbia Correctional Institution,
has filed this pro se lawsuit against defendant Dane Kirk.
Plaintiff alleges that defendant violated plaintiff's
Eighth Amendment rights by failing to perform a “30
minute check” on plaintiff, thereby enabling plaintiff
to cut himself. Plaintiff has made an initial partial payment
of the filing fee in accordance with 28 U.S.C. §
1915(b)(1), so his complaint is ready for screening under 28
U.S.C. §§ 1915(e)(2) and 1915A. Having reviewed the
complaint, I conclude that plaintiff cannot proceed his claim
at this time because he has failed to provide defendant fair
notice of his claim as required by Fed.R.Civ.P. 8. However, I
will give plaintiff an opportunity to file an amended
complaint that states a viable claim and complies with the
Federal Rules of Civil Procedure.
has also filed a motion for assistance with the recruitment
of counsel, which I am denying as premature. It is this
court's practice to refrain from assisting a pro se
prisoner with recruiting counsel until after his complaint
has made it past the screening stage and the court has
confirmed that plaintiff's complaint is not subject to
early dismissal based on any alleged failure to exhaust
available administrative remedies.
Plaintiff's Complaint Fails to Provide Fair Notice of
states that on April 18, 2016, at some time between 8:15 p.m.
and 10:00 p.m., he intentionally cut his left arm and had to
be treated by the prison's nurse. Plaintiff seeks to hold
defendant responsible for this self-inflicted injury because
defendant did not perform the “control placement
checks” defendant was required to perform every 30
minutes. Thus it appears that plaintiff's theory is that
had Ward performed these checks, he could have prevented
plaintiff from harming himself.
have held that a prison official can be held liable under the
Eighth Amendment for self-inflicted harms committed by
prisoners if the prison official “subjectively
knew” of a specific risk of self-harm, but
intentionally disregarded that risk. Collins v.
Seaman, 462 F.3d 757, 761 (7th Cir. 2006). The prisoner
must also show that the injury would not have occurred if the
prison official had not disregarded the risk. Henderson
v. Sheahan, 196 F.3d 839, 848 (7th Cir. 1999).
Plaintiff's sparse allegations fail to state a claim of
deliberate indifference under this standard. Plaintiff states
in passing that he told defendant he was going to harm
himself, but he does not identify when he made this
statement and what action defendant should have taken in
response. An isolated expression of a desire to hurt oneself
long before one actually engages in self-harm would not
support an inference that a prison official
“subjectively knew” of the risk that the specific
self-harm incident at issue might occur.
than dismiss plaintiff's claims with prejudice, I will
provide him an opportunity to submit an amended complaint
that contains additional detail regarding his claim.
Specifically, plaintiff should identify the basis for his
belief that defendant Kirk knew plaintiff intended to engage
in self-harm on April 18, what action defendant should have
taken based on that knowledge and how the failure to take
such action enabled plaintiff to engage in self harm.
Plaintiff's Request for Assistance with Recruitment
of Counsel is Premature
respect to plaintiff's request for assistance with the
recruitment of counsel, I am denying this request as
premature. Generally I will not consider a prisoner's
request for assistance with the recruitment of counsel until
after the complaint has passed screening and I have confirmed
that the prisoner's claims are not subject to dismissal
based on any allegation that plaintiff failed to exhaust his
administrative remedies. Because I believe plaintiff is
capable of drafting his own complaint and litigating any
exhaustion issues that might exist, I will not deviate from
this general rule in this case. If plaintiff's case
clears both of these hurdles, he can renew his request for
assistance with the recruitment of counsel. However, he is
advised that in any renewed motion, he must demonstrate that
he has satisfied the requirements identified by the Court of
Appeals for the Seventh Circuit in Pruitt v. Mote,
503 F.3d 647, 655 (7th Cir. 2007). Under Pruitt,
plaintiff must show that (1) he is unable to afford a lawyer;
(2) that he has made a reasonable effort to retain an
attorney on his own; and (3) the case is too complex for him
to litigate without a lawyer.
plaintiff renews his motion for recruiting counsel, he is
advised that in order to demonstrate that he has made a
reasonable effort to retain an attorney on his own, plaintiff
must submit letters from three attorneys who have declined to
represent him. If plaintiff has not received letters from
three attorneys that have declined to represent him,
plaintiff should provide copies of the letters plaintiff sent
to three attorneys, along with a declaration identifying the
addresses to which he sent the letters, the dates the letters
were sent and a statement that he sent the letters with
proper postage. Only after I am convinced that plaintiff is
both unable to afford a lawyer and has made an effort to find
a lawyer on his own will I consider whether he is incapable
of litigating this case on his own.
Plaintiff Robert Ward's complaint, dkt. #1, is DISMISSED
without prejudice for failing to provide notice of his ...