United States District Court, W.D. Wisconsin
EDWARD B. BURGESS, Plaintiff,
STACY HOEM, RUBIN SCOTT, DR. MINK, LT. SCULLION, Defendants.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Edward Burgess, appearing pro se, is incarcerated at
Wisconsin Secure Program Facility (WSPF). I granted him leave
to proceed on Eighth Amendment claims based on his allegation
that WSPF officials failed to respond adequately to his
mental health needs and retaliated against him when he
complained about their failure to take his mental health
needs seriously. Burgess has filed three motions: (1) a
motion to reconsider my prior screening order, which I
construe as a motion to amend the complaint, Dkt. 22; (2) a
motion for assistance in recruiting counsel, Dkt. 11; and (3)
two letters to Magistrate Judge Crocker, which I construe as
a motion for preliminary injunctive relief, Dkt. 27 and Dkt.
reasons explained below, I will grant Burgess's motion to
amend the complaint in part and deny it in part: I will grant
Burgess leave to proceed on Eighth Amendment claims against
Captain Esser, Jolinda Waterman, and Rebecca Tracy-Feldman,
but I will once again deny him leave to proceed as to
deny without prejudice Burgess's motion for assistance in
recruiting counsel and his motion for preliminary injunctive
Motion to amend
previously dismissed Burgess's Eighth Amendment claims
against Esser, McClaimans, Waterman, and Tracy-Feldman
because I determined that the allegations Burgess made about
them in his amended complaint, Dkt. 9, were too vague to meet
the requirements of Federal Rule of Civil Procedure 8.
See Dkt. 10, at 7. In his motion to amend, Burgess
provides some additional detail about how these defendants
are involved in the events underlying his claims.
new allegations are sufficient to state a claim against
Esser. Burgess alleges that, on December 4, 2017, Esser came
to Burgess's cell to tell him that he was being placed in
temporary lockup for making threats against a non-defendant
WSPF correctional officer. Burgess told Esser that he felt
like harming himself, and Esser responded by telling Burgess
that “he did not care, go ahead and do it.” Dkt.
22, at 3. Esser left Burgess's cell and went to instruct
defendant Scullion to place Burgess in temporary lockup.
Burgess says that Esser “deliberately failed to inform
Lt. Scullion [that] Burgess stated with concise words he was
going to self-harm.” Id. This is sufficient to
state an Eighth Amendment claim against Esser, because
Burgess alleges that Esser (1) knew that Burgess was at risk
for self-harm; and (2) failed to take reasonable measures to
help him. See Gevas v. McLaughlin, 798 F.3d 475, 480
(7th Cir. 2015) (discussing elements of a deliberate
new allegations are also sufficient to state Eighth Amendment
claims against Jolinda Waterman and Rebecca
Tracy-Feldman. Burgess alleges that after being treated
at the hospital for his December 4, 2017 Tylenol overdose,
hospital staff advised WSPF staff that Burgess should be
allowed to return to the hospital for follow-up care if
necessary. Burgess says that, once back at WSPF, he told
Waterman and Tracy-Feldman, two members of the health service
unit staff, that his condition had worsened and that he felt
he needed to go back to the hospital, either to have his
stomach pumped or to receive an additional dose of charcoal
solution. He says that he told Waterman and Tracy-Feldman
that his stomach was burning and hurting, that he was
regurgitating blood, felt dizzy, had a hot sensation in both
ears, and couldn't stop sweating, shaking, or blinking.
Despite these reported symptoms, Waterman and Tracy-Feldman
refused to allow Burgess return to the hospital or to provide
him with follow-up care.
from these allegations that Waterman and Tracy-Feldman knew
about Burgess's serious medical need and disregarded it,
which is enough to state an Eighth Amendment claim. These
claims are slightly different than the ones Burgess asserts
against the other defendants in this case. Whereas
Burgess's current claims concern whether WSPF staff
violated Burgess's Eighth Amendment rights by failing to
take sufficient measures to prevent him from engaging in
self-harm, these claims concern an alleged failure to provide
Burgess with necessary medical treatment for his painful
physical symptoms. Nonetheless, the incident with Waterman
and Tracy-Feldman immediately followed one of the two suicide
attempts at issue here and implicate the same deliberate
indifference legal theory, so I am satisfied that these
claims can proceed together in this lawsuit without violating
Federal Rule of Civil Procedure 20(a)(1).
will allow Burgess to proceed on these claims against
Waterman and Tracy-Feldman in this lawsuit, with one
important clarification. Burgess makes several statements
about Waterman and Tracy-Feldman's alleged motives for
denying him care that do not state claims under the Eighth
Amendment and cannot proceed as part of this suit. Burgess
says that Waterman and Tracy-Feldman ignored his pleas for
medical attention because “they had been briefed by
security in a conspired action to find an [il]licit drug in
Burgess['s] blood, by performing a blood test that had
no medical connection for a medical remedy for
Burgess['s] medical complaints.” Dkt. 22, at 5.
Burgess says that this was part of a larger conspiracy by
security staff to frame him for illicit drug use and cancel
his visitation with his wife. Id. at 6. None of
Burgess's allegations plausibly suggest that Waterman and
Tracy-Feldman's actions on December 4 were in any way
connected to a conspiracy to frame Burgess for drug use or
cancel his visitation with his wife. Mere speculation,
unsupported by plausible factual allegations, is not
sufficient to state a claim, under the Eighth Amendment or
otherwise. So although I am allowing Burgess to proceed on
Eighth Amendment claims against Waterman and Tracy-Feldman
based on their failure to address his medical needs following
his December 4, 2017 suicide attempt, I am not granting
Burgess leave to proceed on claims related to this alleged
Burgess asks me to allow him to pursue his claim against
McClaimans. I originally dismissed McClaimans as a defendant
because Burgess's complaint provided no basis from which
to infer that McClaimans acted with deliberate indifference.
See Dkt. 10, at 7. In his motion to amend, Burgess
again provides no details or information about
McClaimans's involvement in the underlying events that
would permit me to infer that McClaimans somehow violated
Burgess's Eighth Amendment rights. So I will not allow
Burgess to proceed on a claim against McClaimans.
Motion for assistance in recruiting counsel
Burgess's motion for assistance in recruiting counsel, I
will deny it without prejudice. There is no right to counsel
in civil cases, Olson v. Morgan, 750 F.3d 708, 711
(7th Cir. 2014), so a party who wants assistance from the
court in recruiting counsel must meet certain requirements.
Santiago v. Walls, 599 F.3d 749, 760-61 (7th Cir.
2010). Burgess has already met two of the requirements
because he has shown that he is unable to afford counsel and
that he has made reasonable efforts on his own to find a
lawyer. See Dkt. 6; Dkt. 14-1.
Burgess must also show that his is one of the relatively few
cases in which it appears from the record that the legal and
factual difficulty of the case exceeds the litigant's
demonstrated ability to prosecute it. Pruitt v.
Mote, 503 F.3d 647, 654-55 (7th Cir. 2007) (en banc).
“The question is not whether a lawyer would present the
case more effectively than the pro se plaintiff” but
instead whether the pro se litigant can “coherently
present [his case] to the judge or jury himself.”
Id. at 655. Almost all of this court's pro se
litigants would benefit from the assistance of counsel, but
there are not enough lawyers willing to take these types of
cases to give each plaintiff one. I must decide for each case
“whether this particular prisoner-plaintiff, among many
deserving and ...