United States District Court, W.D. Wisconsin
THOMAS W. ZACH, Plaintiff,
SCOTT HETH, ROBERT SCHENCK, TROY HERMANS, SECURITY GUARD HANSEN, R.N. GRAY, SECURITY GUARD TRAAS, SECURITY GUARD KOHLOFF, MS. JACKIE, ANN KRUEGER, WELCOME ROSE, CHARLES COLE, CHARLES FACKTOR, KAREN GOURLIE, MS. CHRISTIAN, BECKY RASMUSSEN, and at least one JOHN DOE AND JANE DOE, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Thomas W. Zach, a former Wisconsin Department of Corrections
inmate appearing pro se, filed this lawsuit about prison
officials retaliating against him in various ways while he
was incarcerated. I dismissed Zach's original complaint
because his allegations violated Federal Rules of Civil
Procedure 8 and 20: he did not explain how each of his claims
belonged in the same lawsuit and how each defendant was
involved in violating his rights. See Dkt. 4, at 2.
particular, Zach brought claims generally fitting into two
categories: (1) prison officials withdrew money from his
prison account even though his sentencing court did not order
such withdrawals; and (2) prison officials forced him to
sleep on an unsafe upper bunk even though he had limited
mobility after a back injury, and he fell and injured
himself. Id. But it was not clear how the two sets
of events could fit together as one series of transactions
under Rule 20. Zach alleges that all of the events were the
result of prison officials' organized effort to retaliate
against him for filing previous lawsuits. Id. at 3.
But his allegations came nowhere close to showing how he knew
that all of the defendants joined in a conspiracy against
him. And even aside from the Rule 20 problems, Zach did not
explain what each individual defendant did to violate his
rights; instead he generally listed the names of several
defendants and alleged vaguely that they all harmed him.
Id. at 3-4.
has filed an amended complaint, Dkt. 7, that fixes some of
the problems in his original complaint. In particular, he no
longer attempts to bring claims about the withdrawal of money
from his prison accounts, so that potential Rule 20 problem
has been eliminated. There are still significant problems
with portions of the amended complaint: he has expanded his
complaint to 66 single-spaced pages with long numbered
paragraphs, many of which would be impossible for defendants
to answer coherently because he continues to often refer to
large groups of defendants acting in concert rather than
explain what each individual defendant did to violate his
rights. Or he vaguely alleges that a “defendant”
or “defendants” harmed him in some way, but he
does not identify which particular defendants harmed him. I
will disregard the portions of the complaint that do not
comply with Federal Rule of Civil Procedure 8 by containing
short and plain statements of his claims.
also continues to attempt to tie all the events together by
saying that they are part of a conspiracy among all of the
defendants to retaliate against him for filing grievances.
But as with his original complaint in this case and his
complaints in other recent cases before this court, he
appears to assume that because he was treated badly by
several defendants, all of them must have been acting
together, and that the conspiracy must be rooted in his
grievance history. With one exception discussed below, I will
not consider his retaliation claims because he does not
present allegations plausibly showing that defendants acted
the way they did to punish him for filing grievances. If Zach
were to seek further amendment of his complaint to state
retaliation claims, he would have to allege specifically how
he knew that each alleged harmful act was done for the
purpose of retaliating against First Amendment-protected
conduct of his.
there are sections of his complaint that do comply with my
instructions to him about providing allegations that hang
together as a story explaining what individuals did to
violate his rights. See Dkt. 7, at 27-32; 43-50.
Most of those portions of the complaint are answerable and do
state claims under at least some of the theories that Zach
asserts. So I will screen those portions of the complaint
under the same standards that I screened his original
complaint. Under 28 U.S.C. §§ 1915 and
1915A, I must dismiss any portion of complaint that is
legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for monetary damages
from a defendant who by law cannot be sued for money damages.
In screening a pro se litigant's complaint, I must read
the allegations of the complaint generously, Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam), and
accept Zach's allegations as true, Bonte v. U.S.
Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010).
case is about Zach's time at the Oregon Correctional
Center, from August 18 to December 27, 2011. I take Zach to
be saying that he had a bad back that was susceptible to
injury, yet defendants Officer Scott Heth, Ms. Jackie, Becky
Rasmussen, and John Doe (who I will refer to as Doe No. 1)
forced him to take physically demanding prison jobs despite
knowing that he could get injured, or on some occasions,
knowing that he was already injured. They threatened to send
Zach to segregation unless he took those jobs. This resulted
in Zach suffering three painful and debilitating severe
Eighth Amendment prohibits prison officials from acting with
deliberate indifference to prisoners' serious medical
needs. Estelle v. Gamble, 429 U.S. 97, 103-04
(1976). A “serious medical need” is a condition
that a doctor has recognized as needing treatment or one for
which the necessity of treatment would be obvious to a lay
person. Johnson v. Snyder, 444 F.3d 579, 584-85 (7th
Cir. 2006). A medical need is serious if it is
life-threatening, carries risks of permanent serious
impairment if left untreated, results in needless pain and
suffering, significantly affects an individual's daily
activities, Gutierrez v. Peters, 111 F.3d 1364,
1371-73 (7th Cir. 1997), or otherwise subjects the prisoner
to a substantial risk of serious harm. Farmer, 511
U.S. at 847. To be considered “deliberately
indifferent, ” an official must know of and disregard
“an excessive risk to an inmate's health or safety;
the official must both be aware of the facts from which the
inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.”
Snipes v. Detella, 95 F.3d 586, 590 (7th Cir. 1996).
However, inadvertent error, negligence, gross negligence, and
ordinary malpractice are not cruel and unusual punishment
within the meaning of the Eighth Amendment. Vance v.
Peters, 97 F.3d 987, 992 (7th Cir. 1996).
allow Zach to proceed on Eighth Amendment claims against
Heth, Ms. Jackie, Rasmussen, and Doe No. 1 because he alleges
that they knew that they were subjecting him to a serious
risk of harm because he was physically unable to perform
particular prison jobs, yet they forced him to take the jobs
October 3, 2011, Zach injured his back harvesting vegetables.
He was called to the work-release office, where defendants
Heth and Officer Hansen saw that he was in extreme distress,
writhing in pain, but they did nothing to help him. Instead,
they threatened to place him in segregation for refusing
work. Zach was in such extreme physical and emotional
distress that he lost control of his bladder. Eventually they
let him walk to the nurse, but only after he suffered
considerably. Almost immediately, a John Doe officer (who I
will refer to as Doe No. 2) forced Zach to move to an upper
bunk without a ladder or safety restraining bar, despite
Zach's injuries. The officer told him that Heth and
Hansen ordered the assignment to harm him. Zach also says
that defendant Officer Kohloff saw Doe No. 2 take him to the
upper bunk with his injuries, and yet did not intervene.
conclude that Zach states Eighth Amendment claims against
Heth and Hansen for delaying in letting Zach get medical
care, and Eighth Amendment claims against Heth, Hansen, Doe
No. 2, and Kohloff for placing him in an upper bunk despite
knowing the danger he faced given his physical disability, or
for failing to intervene to stop the assignment.
fell off the bunk on October 15, 2011. Zach says that he
suffered “substantial” injuries to his face,
neck, back, and right arm. But officials waited eight hours
to take him to the emergency room. At one point in his
complaint, Zach says that “all defendants” denied
his request for medical attention, but is not a plausible
allegation given the sheer number of officials he has named
as defendants. Elsewhere in his complaint he alleges that
defendant nurses Gray and Jane Doe delayed in getting him
proper care, giving him only Tylenol. Dkt. 7, at 11, so I
will allow him to proceed on Eighth Amendment claims against
Gray and Jane Doe.
point, Zach was suffering severe psychological distress
because of the mistreatment he continued to receive from
prison officials. But when he requested a psychological
appointment, a nurse told defendants Hansen, Officer Troy
Hermans, and Officer Robert Schenck, who rejected Zach's
request. I take Zach to be saying that Hermans and Schenck
were the acting supervisors at the Oregon facility, but that
nonetheless, neither they nor Hansen were medical officials
who would ordinarily have the power to deny requests for
medical help. So I will allow him to proceed on Eighth
Amendment claims against these officials for interfering with
his medical care.
says that by the time he left the Oregon facility, he had
eight inmate grievances still outstanding, and that various
“corrections complaint examiners” waited until
four months after he was released to issue their final
rulings. But mishandling of grievances by officials who were
not part of the underlying violations does not support a due
process claim, see Owens v. Hinsley, 635 F.3d 950,
953 (7th Cir. 2011), and Zach does not provide nearly enough
information about his grievances to tell whether any
defendant could be considered culpable for failing to