United States District Court, W.D. Wisconsin
JOHN L. DYE, JR., Plaintiff,
MARY KLEMZ, CARLO GAANAN, THOMAS MICHLOWSKI, JON E. LITSCHER, LOYDA LORIA, and STEVE SPANBAUER, Defendants.
OPINION & ORDER
D. PETERSON, DISTRICT JUDGE.
John Dye, a prisoner at the Waupun Correctional Institution
(WCI), brings Eighth Amendment and Rehabilitation Act claims
against defendant officials at the Wisconsin Resource Center
(WRC). Dye claims that defendants forced him to use a
short-handled toothbrush despite his suffering from a
“mallet-type deformity” in his right thumb and
arthritis in both hands, and that this caused him severe
pain. Defendants have filed a motion for summary judgment, in
which they contend that they were not deliberately
indifferent toward Dye's medical needs and that they did
not prevent Dye from caring for himself.
Dye has established that he suffers from a deformity in his
right thumb and it is understandable that this might cause
him pain while using a small toothbrush, Dye has failed to
present any evidence that he made any attempt to alert WRC
staff to problems with his left hand during his 2013-2014
stint at WRC. All of Dye's complaints during this time
related to the pain the small toothbrushes caused his right
thumb. In light of these complaints, the hygiene options that
staff presented to Dye were adequate under the Eighth
Amendment and Rehabilitation Act. I will grant
defendants' motion for summary judgment and dismiss the
Scope of claims
point, Dye's claims are limited to those regarding his
2013-14 stint at WRC. Dye originally also brought claims
against defendants Loyda Loria and Steve Spanbauer regarding
a 2008-09 stint at WRC, but I concluded that he could not
proceed in forma pauperis on these claims for past
harm because he has “struck out” under 28 U.S.C.
§ 1915(g). See Dkt. 32. I gave him a chance to
pay the entire $350 filing fee for the case so that he could
bring the additional claims, but he did not do so. I also
denied Dye's motion to reconsider this ruling regarding
his claims against Loria. See Dkt. 80. The court has
not yet formally dismissed Loria and Spanbauer from the case,
so I will do so in this order.
Recruitment of counsel
previously moved for the court's assistance in recruiting
him counsel, which I denied because he did not (1) provide
the names and addresses of at least three lawyers who
declined to represent him in this case; and (2) demonstrate
that his is one of those relatively few cases in which it
appeared from the record that the legal and factual
difficulty of the case exceeded his ability to prosecute it.
Dkt. 68 (citing Pruitt v. Mote, 503 F.3d 647, 655
(7th Cir. 2007)). Along with his summary judgment materials,
Dye now provides the names and addresses of three lawyers who
have declined to represent him, which I take to be an attempt
to renew his motion for the court's assistance.
will deny Dye's motion, because he has failed to
demonstrate that this case exceeds his ability to prosecute
it. He has failed to make any argument that would support the
conclusion that this case is too difficult for him. Although,
as discussed below, I will grant defendants' motion for
summary judgment, it is not because of Dye's inability to
litigate his case: he adequately presents his reasons for
believing that defendants violated his rights. But I conclude
that the undisputed evidence is insufficient to support his
Technical flaws in Dye's summary judgment
point to technical deficiencies in Dye's responses to
their proposed findings of fact, which they contend shows
that Dye fails to create any issue of material fact in this
case. It is true that Dye's responses often do not cite
directly to the exhibits he provided and instead point to
broad categories of material such as “medical
documents.” However, I will not disregard the responses
of a pro se plaintiff for technical flaws of this type and
degree. Dye does attempt to respond to defendants'
proposed facts and the documents he provides in support are
not unreasonably voluminous. Although his citation is not
perfect, Dye creates an adequate factual record for his case
and therefore I will not disregard his responses.
following facts are undisputed except where noted.
John Dye is a prisoner in the state of Wisconsin system.
Defendant Dr. Carlo Gaanan has been a physician at WRC since
2002. Defendant Mary Klemz was the deputy superintendent
during the time relevant to this case. Dr. Thomas Michlowski
has been the medical director of WRC since 1992. Defendant
Jon E. Litscher is currently the secretary of the Department
of Corrections, which makes him the appropriate defendant for
Dye's Rehabilitation Act claim.
point in the past, Dye suffered an injury to his right hand
that required surgery. The damage left by this injury caused
lasting damage to the soft tissue near his thumb and left him
with a mallet type deformity in his right thumb. This
condition causes Dye pain in this thumb, and makes it
difficult to bend it. Dye also says that he has arthritis in
spent two separate periods of time at WRC. The first of these
stints encompassed parts of 2008 and 2009. During this time,
Dye complained to medical staff about pain in his right thumb
and requested the use of a larger toothbrush due to the pain
that the standard issue “pinkey-sized”
toothbrushes caused his right thumb and both hands due to
arthritis. Defendants say that long-handled toothbrushes can
be shaped into a weapon. Dye was given a left wrist brace
during this period of time and at one point was prescribed
Celebrex, a medication often used to treat arthritis pain.
Dye met with Dr. Loyda Loria, who denied Dye's request
for a regular toothbrush as medically unnecessary.
transferred to WCI in 2009. During his time in WCI, Dye was
approved for the use of wrist braces on both hands.
returned to WRC for his second stint on January 23, 2013. His
health screening report stated that he was severely
depressed. On January 28, Dye was examined by defendant Dr.
Gaanan. Dye was treated for head, chest, and neck pain.
During this examination, Dye described pain in his right
thumb, and he requested a larger toothbrush as a remedy.
Although Dye claims that Gaanan indicated he would have to
seek approval from higher authorities at the WRC,
Gaanan's treatment notes say that he denied the request
at that time.
January 29, Dye sent a letter to the Health Services Unit in
which he wrote, “I do have medical documentation that
clearly confirm[s] permanent injury to my permanently broken
right thumb which being subjected to use the
‘pinkey' size toothbrush is exacerbating pain in my
thumb.” Dkt. 87-1, at 8. He further added an excerpt
from an undated medical report that stated Dye suffers from a
partial disability due to pain in his right thumb. The
excerpt provided ...