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Dye v. Klemz

United States District Court, W.D. Wisconsin

January 22, 2018

JOHN L. DYE, JR., Plaintiff,
v.
MARY KLEMZ, CARLO GAANAN, THOMAS MICHLOWSKI, JON E. LITSCHER, LOYDA LORIA, and STEVE SPANBAUER,[1] Defendants.

          OPINION & ORDER

          JAMES D. PETERSON, DISTRICT JUDGE.

         Plaintiff 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.

         Although 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 case.

         PRELIMINARY MATTERS

         A. Scope of claims

         At this 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.

         B. Recruitment of counsel

         Dye 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.

         But I 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 claims.

         C. Technical flaws in Dye's summary judgment submissions

         Defendants 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.

         UNDISPUTED FACTS

         The following facts are undisputed except where noted.

         Plaintiff 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.

         At some point in the past, Dye suffered an injury to his right hand that required surgery.[2] 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 both hands.

         Dye spent two separate periods of time at WRC. The first of these stints encompassed parts of 2008 and 2009.[3] 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.

         Dye was transferred to WCI in 2009. During his time in WCI, Dye was approved for the use of wrist braces on both hands.

         Dye 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.

         On 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[4] that stated Dye suffers from a partial disability due to pain in his right thumb. The excerpt provided ...


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