United States District Court, W.D. Wisconsin
Harry G. Schmidt, JR. Plaintiff,
Oshkosh Correctional Institution, Defendant.
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge.
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.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.
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.
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
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.
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 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).
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.” This means that this court must dismiss
OCI as a defendant. See Will v. Michigan Dep't of
State Police, 491 U.S. 58 (1989).
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.
on, Schmidt has asked this court to issue restraining orders
requiring the Wisconsin 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.
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 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 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.
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 ...