United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
plaintiff, Christopher Berry, who is incarcerated at Green
Bay Correctional Institution, filed a pro se complaint under
42 U.S.C. § 1983, alleging that his civil rights were
violated. On May 18, 2017, Berry filed a motion to amend
information. The court denied Berry's motion because it
did not comply with the Federal Rules of Civil Procedure and
local rule governing the amendment of pleadings. The court
advised Berry that he could file a motion for leave to amend
and that he should attach a proposed amended complaint to the
motion. Berry has complied with the court's order and his
motion to amend the complaint is granted pursuant to Federal
Rule of Civil Procedure 15. This matter comes before the
court for screening Berry's amended complaint. Also
pending before the court are Berry's motions to proceed
without prepaying the full filing fee, for an extension to
pay the initial partial filing fee, and to appoint counsel.
Motion for Leave to Proceed Without Prepayment of the Filing
is required to pay the $350.00 statutory filing fee for this
action. See 28 U.S.C. § 1915(b)(1). If a
prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing fee of his complaint, as required under
28 U.S.C. § 1915(a)(2), and had been assessed and paid
an initial partial filing fee. Berry has also filed two
motions for an extension of time to pay the initial partial
filing fee. He has since paid the initial partial filing fee
of $3.58. As such, Berry's motion to proceed in forma
pauperis will be granted and his motions for an
extension of time will be denied as moot.
Screening of the Complaint
court is required to screen 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 or portion thereof if the
prisoner has raised 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). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter, accepted as
true, “that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). The court accepts the
factual allegations as true and liberally construes them in
the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, the
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
claims he suffers from a mild form of scoliosis. Because of
this condition, doctors at the Wisconsin Secure Program
Facility prescribed certain medical treatment to reduce the
amount of pain he experienced, including a lower bunk
restriction, a back brace, hot and cold treatments, an extra
mattress and pillow, and supportive velcro shoes. Berry
alleges these restrictions have followed him throughout his
transfers to various Wisconsin Department of Corrections
institutions for approximately thirteen years. Once he was
transferred to Green Bay Correctional Institution (GBCI),
however, he alleges Dr. Suavey and Jean Lutsey, the Health
Services Manager, discontinued the medical restrictions.
Berry alleges he was unable to make an appointment with a
doctor who could reinstate them. He filed more than a dozen
medical complaints with the Inmate Complaint Review System,
the Warden, and defendant Lutsey with requests to see a
doctor regarding the discontinuance of the restrictions. He
asserts he did not see a doctor for many months because Dr.
Suavey had left GBCI, and the Health Services Unit had not
found a replacement. He alleges he endured excruciating low
back pain and an ongoing numbness in his right shoulder
during this time.
ultimately sent Berry to several offsite pain clinics for
tests regarding his ongoing complaints of pain. Berry alleges
an EMG revealed his condition had worsened. After reviewing
the EMG, GBCI's Physical Therapist Haight informed Berry
that he had a pinched nerve in his neck which caused his
right arm to go numb. Based on these findings, Berry
requested a low-tier restriction to accommodate his
condition. However, Nurse Practitioner Peters and HSU Manager
Lutsey concluded his condition did not warrant this
restriction because Peters determined Berry did not have a
asserts the defendants were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment.
The Eighth Amendment prohibits “cruel and unusual
punishments” and imposes a duty on prison officials to
take reasonable measures to guarantee an inmate's safety
and to ensure that the inmate receives adequate medical care.
Farmer v. Brennan, 511 U.S. 823, 832 (1994). Prison
officials violate the Constitution if they are deliberately
indifferent to a prisoner's serious medical needs.
Id. (citing Estelle v. Gamble, 429 U.S. 97,
103 (1976)). To state a claim based on deficient medical
care, a plaintiff must demonstrate that he had an objectively
serious medical condition and that the defendants were
subjectively aware of and consciously disregarded that
condition. Id. at 837. A medical need is considered
sufficiently serious if the inmate's condition “has
been diagnosed by a physician as mandating treatment or . . .
is so obvious that even a lay person would perceive the need
for a doctor's attention.” Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011) (citations omitted).
claims defendants Lutsey and LaBelle prevented GBCI's
doctors from prescribing restrictions to reduce the pain he
suffered in connection with his scoliosis and repeatedly
delayed his access to proper medical care for several months.
Based on the deliberate indifference standard, Berry has
adequately plead facts to state a claim that Lutsey and
LaBelle were deliberately indifferent to his serious medical
asserts all of the defendants were deliberately indifferent
in discontinuing his medical restrictions and refusing to
reinstate them. Here, I conclude that the complaint at least
minimally sets forth a claim of deliberate indifference
against defendants Lutsey, LaBelle, Suavey, and Peters for
failing to accommodate his requests for restrictions. Indeed,
the facts may lend themselves more to a negligent claim,
which is not actionable under § 1983. See Id.
But at this early stage in the case, the court will allow
Berry's claim to proceed against these defendants.
Berry has not sufficiently alleged a deliberate indifference
claim as to defendants Allen, Joseph, Haight, and the GBCI
Special Needs Committee. The complaint does not contain any
allegations that these defendants were aware of Berry's
requests for medical restrictions or any other medical
treatment. In assessing an Eighth Amendment claim, the
standard is not whether the defendants should have known that
the plaintiff needed certain medical care, but rather whether
they actually knew of the plaintiff's need and were
deliberately indifferent to it. See Gayton v. McCoy,
593 F.3d 610, 620 (7th Cir. 2010) (“The official must
have subjective knowledge of the risk to the inmate's
health, and the official also must disregard that
risk.”). In other words, defendants Allen, Joseph,
Haight, and the Special Needs Committee cannot be held liable
for disregarding a serious medical need or his requests for
medical restrictions about which they had no knowledge.
Therefore, they must be dismissed from this action.
Berry asserts Lutsey retaliated against him by discontinuing
his ice bag. To prevail on a First Amendment retaliation
claim, Berry must show that (1) he engaged in activity
protected by the First Amendment; (2) he suffered a
deprivation that would likely deter First Amendment activity
in the future; and (3) the First Amendment activity was
“at least a motivating factor” in Lutsey's
decision to take the retaliatory action. Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Here, Berry
does not identify what protected activity motivated Lutsey to
discontinue his ice bag. He also does not allege that denying
an individual's access to an ice bag is a form of
deprivation that would deter protected activity in the