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Schmidt v. Oshkosh Correctional Institution

United States District Court, W.D. Wisconsin

November 7, 2016

Harry G. Schmidt, JR. Plaintiff,
Oshkosh Correctional Institution, Defendant.


          STEPHEN L. CROCKER Magistrate Judge.

         Plaintiff 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.[1]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.

         Schmidt 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.


         Schmidt 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 and exercises.

         On 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.


         Schmidt 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).

         Schmidt 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).

         But, 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.

         Moving 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.

         Schmidt's 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's motions.

         Finally, 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.

         If 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 ...

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