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Oswald v. Manlove

United States District Court, E.D. Wisconsin

November 23, 2016

DANIEL PERRY OSWALD, Plaintiff,
v.
JEFFREY MANLOVE, et al., Defendants.

         DECISION AND ORDER DENYING AS MOOT THE PLAINTIFF'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT (DKT. NO. 15), GRANTING HIS MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT (DKT. NO. 20), DENYING HIS MOTION FOR THE APPOINTMENT OF COUNSEL (DKT. NO. 16), AND GRANTING DEFENDANTS' MOTION TO SCREEN AMENDED COMPLAINTS (DKT. NO. 26)

          HON. PAMELA PEPPER United States District Judge

         On September 6, 2016, the court screened the plaintiff's complaint, and allowed him to proceed on Eighth Amendment and negligence claims against defendants Jeffrey Manlove, Belinda Schrubbe, Kristine DeYoung, and two Jane Doe nurses. Dkt. No. 11. The court also explained to the plaintiff that, with some additional information, he might be able to state an Eighth Amendment conditions-of-confinement claim. Id. at 11. The court noted that if the plaintiff believed he had adequate facts to state such a claim, he could file an amended complaint. Id.

         On September 12, 2016, the plaintiff filed a motion for leave to amend his complaint, dkt. no. 15, and a motion for the appointment of counsel, dkt. no. 16. The plaintiff explained that the only changes he made to his original complaint were to remove the proposed defendants that the court had dismissed in its screening order and to add additional allegations in an effort to state a conditions-of-confinement claim. Id. On October 14, 2016, the plaintiff filed a motion seeking to further amend his complaint. Dkt. No. 20. His proposed second amended complaint keeps the revisions made in his proposed first amended complaint, adds a new defendant (Nurse Schroeder), and adds allegations relating to the denial of special shoes. Id.

         Federal Rule of Civil Procedure 15(a) requires courts to liberally grant requests to amend pleadings. The court will deny the plaintiff's first motion to amend as moot (because the first proposed amended complaint would be superseded by his proposed second amended complaint), it will grant the plaintiff's second motion, and screen the second amended complaint pursuant to 28 U.S.C. §1915A. The court also denies the plaintiff's motion for the appointment of counsel, dkt. no. 16, and by screening the second amended complaint, grants the defendants' motion to screen, dkt. no. 26.

         I. Screening of the Plaintiff's Second Amended Complaint

         As the court already explained in its original screening order, the law requires the court to screen complaints, including amended complaints, brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint-all of it, or just part of it-if the plaintiff raises claims that are legally “frivolous or malicious, ” that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915A(b).

         To state a cognizable claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead specific facts, and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         A. The Plaintiff's Allegations

         On August 1, 2014, the plaintiff was examined off-site at the “U.W.M. Spine Specialist/Clinic” for a “debilitating” back condition, consisting of a deteriorating spine with multiple bulging discs and pinched nerves. Dkt. No. 20-1 at 4. The clinic recommended that the plaintiff be moved to a lower tier, a recommendation that Waupun Correctional Institution (WCI) immediately implemented. Id. In addition, on October 1, 2014, health services approved the plaintiff for an elevator pass, so that he could go to medical and mental health treatments without having to use the stairs. Id.

         On November 13, 2014, the plaintiff was placed in segregation. Id. The plaintiff notified the segregation officers of his elevator pass and alerted them that the Special Needs Committee had approved his use of various items as a result of ongoing medical problems. Id. at 5-6. These items included an extra pillow (for his back), a washcloth and towel, adult diapers, and clean linen as needed. Id. at 6. The Committee had approved the washcloth, towel, adult diapers, and clean linen because the plaintiff suffers from incontinence, and often wets the bed at night. Id. at 6-7. He needs the extra towel, washcloth, and linens in the event he soils himself during the night. Id.

         The officers in segregation allowed the plaintiff to use the elevator to attend medical and mental health appointments from November 13 through November 17, 2014. Id. at 6. On November 17, 2014, however, defendant Christine DeYoung told the plaintiff that he did not need the elevator pass while he was in segregation because “technically” there was no lower tier in segregation. Id. The plaintiff explains that segregation “is like a bi-level house.” Id. at 6. The officers are located on the main floor, with the inmates being housed upstairs and downstairs. Id. The plaintiff states that an inmate must go up twelve steps to get to the upper level or down six stairs to get to the lower level. Id.

         The plaintiff states that he contacted defendant Belinda Schrubbe, the health services manager, about segregation's failure to honor his elevator pass, but she replied that “technically” there is no first floor in segregation, so he did not need to be accommodated. Id.

         On November 21, 2014, defendant Jeffrey Manlove, the plaintiff's treating physician, examined the plaintiff. Id. The plaintiff informed him that segregation officers were not honoring his elevator pass. Id. He also told Manlove that his medical needs slip for items to accommodate his bed-wetting condition was set to expire on December 5, 2014. Id. Manlove told the plaintiff that he would look into both issues. Id.

         On December 4, 2014, the plaintiff told DeYoung that his special needs slip was set to expire the following day. Id. at 7. DeYoung said she would get an updated slip, but she never returned. Id. The plaintiff alleges that from December 5, 2014 through December 17, 2014, John Doe Officer refused to give the plaintiff the items approved by the Special Needs Committee because the slip had expired. Id. at 7-8.

         Specifically, the plaintiff asserts that on Tuesday, December 9, 2014, he awoke to a soiled adult diaper and a urine stain on his sheets. Id. at 8. Because it was a shower day, John Doe Officer gave the plaintiff new clothes, but he refused to give him new linens, explaining that new linens were given only on Sundays. Id. On December 11, 2014, the plaintiff awoke to soiled sheets, underwear (the plaintiff was no longer receiving adult diapers), and a blanket. Id. The plaintiff states that he slept only in his underwear because he feared he would wet the bed and he did not want to get his clothes dirty. Id. He explains that he rinsed his underwear in his sink. Id. On December 14, 2014, John Doe Officer gave the plaintiff new linens because it was linen exchange day, but he would not give him a new blanket. Id. Finally, on December 17, 2014, the plaintiff once again ...


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