United States District Court, E.D. Wisconsin
JOSHUA J. OSBORNE, Plaintiff,
MICHAEL MEISNER, SANDRA HAUTAMAKI, ANDREW WESNER, CHAD KELLER, MATTHEW FOCHS, SGT. RALLS, CO. TIMMS, CO. HEFT, CO. JOHNSON, CO. RODER, R.N. THOMPSON, R.N. BETTY HOOSEN, NURSE KLENKE, and CO. SMITH, Defendants.
Stadtmueller, U.S. District Judge.
6, 2017, the Court screened Plaintiff's original
complaint. (Docket #9). The Court permitted Plaintiff to
proceed on claims of inadequate conditions of confinement,
medical malpractice, and deliberate indifference to his
serious medical needs. Id. at 8. On July 21, 2017,
the Court entered a scheduling order in this matter and
afforded Plaintiff until August 18, 2017, to file an amended
complaint if he chose to do so. (Docket #14). Plaintiff filed
an amended complaint on August 9, 2017. (Docket #21). The
Court now turns to screening that amended complaint.
noted in the first screening order, the Court is required to
screen complaints brought by prisoners seeking relief against
a governmental entity or an 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 "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. Id. § 1915A(b). All of the
standards cited in the first screening order remain
applicable here. (Docket #9 at 1-3).
amended complaint largely tracks the allegations made in the
original complaint, but it seeks to refine the facts and
identify more of the actors involved. To ensure continuity in
the narrative, the Court will largely repeat the narrative
from the original screening order.
alleges that he was placed in the restricted housing unit
("RHU") on temporary lock-up ("TLU")
status on September 7, 2016. (Docket #21 at 2). He was sent
to the RHU pending investigation into a physical altercation
in which he was involved. Id. When he arrived at the
particular RHU cell to which he was assigned, he was told he
would be put in a cell with another inmate and that he would
sleep on the floor with a mattress. Id. He
protested, claiming that he had to be single-celled due to
his TLU status and that he wanted to avoid sleeping on the
floor because it was dirty with dust and "black
stuff." Id. He was told by Sgt. Ralls
("Ralls") that he would be tazed, issued a conduct
report, and forced into the cell if he did not go in
September 22, 2016, Plaintiff asked to speak with the RHU
sergeant, Matthew Fochs ("Fochs"). Id.
Fochs did not respond. Id. He then asked to speak
with the RHU captain, Andrew Wesner ("Wesner"), on
September 24, 2016, but again he was ignored. Id.
Next, on September 26, 2016, he contacted the prison deputy
warden, Sandra Hautamaki ("Hautamaki"), about the
"floor situation" and was told to follow the chain
of command and contact officer Chad Keller
("Keller"), who also worked in the RHU.
Id. Keller likewise ignored Plaintiff's requests
for aid, but Plaintiff does not say when he reached out to
his confinement in the RHU, Plaintiff claims that night after
night as he slept, he was repeatedly bitten by bugs crawling
up through the drain in the cell floor, which he slept next
to. See Id. The bug bites caused a severe rash all
over his body. Id. at 2-3. The rash itched, burned
while showering, and exuded puss. Id. Plaintiff
reports that showering was so painful, he had to take
"bird baths" by dabbing himself with his bedsheets,
which were soaked with his cellmate's urine since he
slept on the floor near the toilet. Id. at 3.
Plaintiff asserts that during this time, he complained
repeatedly about his cell conditions and his rash to CO.
Timms ("Timms"), CO. Heft ("Heft"), CO.
Roder ("Roder"), CO. Smith ("Smith"), and
CO. Johnson ("Johnson"), all of whom either
directed him to contact the Health Services Unit
("HSU") or told him to "deal with it."
Id. at 2.
submitted his two HSU requests about these conditions, one on
September 24 and another on September 28, 2016. Id.
Plaintiff contends that R.N. Betty Hoosen
("Hoosen") ignored the first request "for at
least a week." Id. Plaintiff was eventually
taken to the HSU on September 30, 2016, but he says he was
not seen by medical staff and was simply told to come back
later. Id. at 3. As for R.N. Klenke
("Klenke"), Plaintiff appears to claim that she
ignored one or more of his HSU requests. See Id.
Likewise, R.N. Thompson ("Thompson") told Plaintiff
she would call him back later because she was busy, but never
did so. Id. Plaintiff asserts that he was thus never
seen at all by medical personnel although he had properly
submitted HSU requests. Id.
also filed an inmate grievance about the conditions of his
cell. Id. (The original complaint dated the
grievance September 26, 2016, but the amended complaint no
longer contains this detail.) He alleges that the complaint
was dismissed by the complaint examiner and eventually
reviewed by the prison warden, Michael Meisner
("Meisner"). Id. According to Plaintiff,
no one ever came to investigate the conditions of his cell.
his original complaint, Plaintiff raises the following legal
claims: (1) inadequate conditions of confinement, in
violation of the Eighth Amendment; (2) medical malpractice
under Wisconsin state law; (3) deliberate indifference to his
serious medical needs, in violation of the Eighth Amendment.
Id. at 4. He seeks declaratory judgment as well as
compensatory and punitive damages. Id. at 5.
explained in the first screening order, allegations like
Plaintiff's suffice pass the low threshold set at the
screening stage. First, being forced to sleep on a filthy,
urine-soaked mattress on the floor, despite being bitten by
bugs coming out of a floor drain each night, suffices to
state a claim under the Eighth Amendment based on conditions
of confinement. See Townsend v. Fuchs, 522 F.3d 765,
773 (7th Cir. 2008); Caroll v. DeTella, 255 F.3d
470, 472 (7th Cir. 2001). Further, unlike his last complaint,
Plaintiff now makes clear the Meisner was informed of the
substandard conditions in his RHU cell and did nothing. At
this early stage, allegations that Meisner personally knew of
Plaintiff's plight overcome the usual presumption that
supervisors are not liable for their employee's
constitutional violations. See Pepper v. Vill. of Oak
Park, 430 F.3d 809, 810 (7th Cir. 2005); Sanville v.
McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001). Thus, the
conditions of confinement claim can now proceed against
having one's complaints be ignored and being completely
denied medical care despite a body-covering rash and repeated
requests for aid states a claim for deliberate indifference
to medical needs under the Eighth Amendment. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). It may be that
the correctional officers were within their bounds to simply
refer Plaintiff to the HSU with healthcare concerns,
Arnett v. Webster, 658 F.3d 742, 755 (7th Cir.
2011), but the Court will not foreclose his claim against
them at this juncture.
the Court finds that the medical malpractice claim can
proceed against the nurse Defendants. See Paul v.
Skemp, 625 N.W.2d 860, 865 (Wis. 2001). It should be
remembered that although a constitutional claim arising from
medical care can be levied against non-medical personnel,
there is no authority supporting the idea that the
correctional officers or their supervisors, including
Meisner, could be held to the standard of care applicable in
medical negligence cases. See Wade v. Castillo, 658
F.Supp.2d 906, 919 (W.D. Wis. 2009) (noting that
"Wisconsin law defines medical negligence as the failure
of a medical professional to 'exercise that degree of
care and skill which is exercised by the average practitioner
in the class to which he belongs, acting in the same or
similar circumstances"") (quoting Sawyer v.
Midelfort, 595 NW.2d 423, 435 (Wis. 1999)). Further, it
is clear from Plaintiff's amended complaint that his
medical malpractice claim is directed at medical personnel
only. See (Docket #21 at 4). He makes no attempt to
state a general negligence claim against the non-medical
Defendants. Cf. Zuege v. Knoch, No. 09-cv-451-wmc,
2010 WL 3851994, at *6 (W.D. Wis. Sept. 29, 2010).
reasons stated above, Plaintiff will be permitted to proceed
on the following claims: (1) inadequate conditions of
confinement, in violation of the Eighth Amendment, against
Defendants Meisner, Hautamaki, Fochs, Wesner, Keller, Ralls,
Timms, Heft, Roder, Smith, and Johnson; (2) medical
malpractice under Wisconsin state law, against Defendants
Hoosen, Klenke, and Thompson; and (3) deliberate indifference
to his serious medical needs, in violation of the Eighth
Amendment, against Defendants ...