United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER United States District Judge
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.
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.
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first proposed amended complaint would be superseded by his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.
Screening of the Plaintiff's Second Amended
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.
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
The Plaintiff's Allegations
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.
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.
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.
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.
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.
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.
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 ...