United States District Court, E.D. Wisconsin
STADTMUELLER U.S. DISTRICT JUDGE.
5, 2018, the Court screened Plaintiff's amended
complaint. (Docket #5). The Court allowed Plaintiff to
proceed against Jennifer Kacyon (“Kacyon”), a
nurse, for withholding water from him under a “dry
cell” restriction, allegedly for medical reasons.
Id. at 6-8. The Court dismissed other defendants,
Thomas Nelson (“Nelson”) and Brian Foster
(“Foster”), because Plaintiff alleged that they
knew that Plaintiff was without drinking water, but because
of Plaintiff's medical dry cell restriction, they
believed they could not give him any. Id. at 8.
Non-medical prison officials “are entitled to defer to
the professional judgment of the facility's medical
officials on questions of prisoners' medical
care[.]” Hayes v. Snyder, 546 F.3d 516, 527
(7th Cir. 2008). Therefore, the Court found that
Plaintiff's claims against Nelson and Foster were
defeated by Plaintiff's allegations that they relied on a
medical order in deciding not to provide him water. (Docket
#5 at 8).
12, 2018, Plaintiff filed a motion for reconsideration of the
screening order, claiming that the other defendants may have
turned off his water by mistake, and so should remain in the
case. (Docket #6). The next day, the Court denied that motion
on two bases. (Docket #7). First, the allegations of the
complaint remain unchanged, which attributed the lack of
water to Defendant's medical order. Id. at 2.
Second, even if the complaint had included the allegations
about a mistake by the other defendants, that would not
support constitutional liability. Id. On July 18,
2018, Plaintiff filed a second motion for reconsideration of
the Court's screening order, (Docket #8), and the Court
denied that motion as well, (Docket #9). The Court explained
that if Plaintiff learned of more facts that would support
allegations against additional defendants, he was free to
amend his complaint in accordance with the local rules.
Id. at 2.
February 6, 2019, Plaintiff filed a motion for leave to amend
his complaint. (Docket #14). His proposed amended complaint
abandons Kacyon as a defendant and names several correctional
staff members instead. See (Docket #14-1). Plaintiff
explains that, through discovery, he has learned that Kacyon
had no responsibility after entering the medical dry cell
order to ensure that Plaintiff received adequate drinking
water. Instead, he learned that this responsibility falls to
prison supervisors. He then lists as defendants the prison
officials who were on duty during the three days he was
deprived of water, or who made notes in an observation log
about Plaintiff during that time.
new allegations imply a fact that was missing from his
amended complaint-that the prison supervisors knew Plaintiff
should receive water at regular intervals even when he was
placed on medical dry cell status. In other words, Plaintiff
now alleges that the prison officials who denied him water
were not relying on the dry cell order, or were perhaps
feigning reliance on the order as an excuse for wantonly
inflicting pain on him; he implies their actions were
motivated by malice or reckless indifference. These
allegations are sufficient to satisfy the subjective prong of
an Eighth Amendment claim for purposes of screening.
Court will allow Plaintiff to amend his complaint to remove
Kacyon as a defendant and instead name Nelson, Captain
Theander, and Correctional Officer Gorman. The Eighth
Amendment conditions of confinement claim against these three
men is based on Plaintiff's allegations that they knew
Plaintiff was being deprived of all water, Plaintiff asked
them for water, they knew he should receive water despite the
dry cell order, and they chose not to give him water.
Although Plaintiff seeks to name several other prison
officials as defendants, he does not include in his proposed
amended complaint any allegations about their personal
involvement in his alleged deprivation. He merely recites
from prison observation logs notes from those officers
indicating that they observed Plaintiff alive in his cell
during the three days he was allegedly without water. This is
not sufficient to state a claim under Section 1983. See
Colbert v. City of Chicago, 851 F.3d 649, 657 (7th Cir.
2017) (Individual liability under Section 1983 requires
personal involvement in the alleged constitutional
light of this amendment, the Court would typically order
service on the newly-named defendants under the informal
service agreement between the Wisconsin Department of Justice
(“WDOJ”) and this Court. That agreement permits
defendants sixty days to file a responsive pleading. However,
the WDOJ indicated, in response to Plaintiff's motion to
file a second amended complaint, that if the Court were to
grant Plaintiff's motion, the WDOJ as counsel for the new
defendants would like discovery reopened and the dispositive
motion deadline (currently set for March 1, 2019) extended.
(Docket #15). The Court will treat this motion as having been
filed on behalf of the newly-named defendants and, finding
the request reasonable, will grant it. The discovery cutoff
date will be extended to April 15, 2019, and the dispositive
motion deadline will be extended to June 1, 2019.
IT IS ORDERED that Plaintiff's motion
for leave to file a second amended complaint (Docket #14) be
and the same is hereby GRANTED in part.
Plaintiff is permitted to amend his pleading to remove
Jennifer Kacyon as a defendant and add Thomas Nelson, Captain
Theander, and Correctional Officer Gorman as defendants. The
second amended complaint, with respect to its allegations
against those defendants, shall be the operative pleading in
this matter; and
IS FURTHER ORDERED that Defendants' motion to
reopen discovery and extend the dispositive motion deadline
(Docket #15) be and the same is hereby
GRANTED. The discovery cutoff date will be
extended to April 15, 2019, ...