United States District Court, E.D. Wisconsin
TROY G. HAMMER, Plaintiff,
DR. TODD HAMILTON, DR. SAMANTHA SCHWARTZ-OSCAR, CAPT. MICHAEL SCHULTZ, CAPT. JAY VAN LANEN, LT. WUCHERER, LT. REBECCA LENZ, JOHN DOES, and JANE DOES, Defendants.
ORDER SCREENING AMENDED COMPLAINT
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
Troy G. Hammer, who is currently serving a state prison
sentence at Columbia Correctional Institution and
representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
The court screened Hammer's complaint and allowed him to
proceed on Eighth Amendment and medical malpractice claims
against Drs. Todd Hamilton and Samantha Schwartz-Oscar. On
March 27, 2019, Drs. Hamilton and Schwartz-Oscar moved to
dismiss the complaint on exhaustion grounds. Hammer
subsequently filed a motion to appoint counsel and a letter
indicating that he does not know how to proceed in the case
and stating several reasons for his failure to exhaust. On
April 10, 2019, Magistrate Judge William E. Duffin denied
Hammer's motion to appoint counsel and ordered that,
moving forward, Drs. Hamilton and Schwartz-Oscar's motion
to dismiss would be treated as a motion for summary judgment
because Hammer's letter raised issues outside of the
pleadings. Dkt. No. 18 at 3.
April 11, 2019, Hammer filed a motion for extension of time
to respond to Drs. Hamilton and Schwartz-Oscar's motion
to dismiss, though he likely did not receive notice of the
magistrate's April 10th order before filing for an
extension. Hammer also filed an amended complaint the same
day. Federal Rule of Civil Procedure 15 (a)(1)(B) provides
that “[a] party may amend its pleading once as a matter
of course within . . . if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.”
Because Hammer filed an amended complaint within 21 days
after Drs. Hamilton and Schwartz-Oscar filed a motion to
dismiss, the amended complaint is the operative complaint and
will be screened.
of the Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A(b). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v. Hernandez,
504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319,
325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895,
900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). The court accepts the factual allegations
as true and liberally construes them in the plaintiff's
favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013).
Nevertheless, the complaint's allegations “must be
enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation omitted).
of the Amended Complaint
relevant times to this action, Hammer was incarcerated at
Green Bay Correctional Institution (GBCI). Hammer alleges
that he has a significant history of suicide attempts and
self-mutilation. He alleges that, on June 7, 2016, he
submitted three psychological request slips (PSUs), stating
that he has tried to seek psychological help and that
“he has been contemplating on how he's gonna commit
suicide.” Dkt. No. 20 at ¶ 11. He alleges that
Drs. Hamilton and Schwartz-Oscar, who were at all relevant
times GBCI psychologists, received his PSUs on June 8th, the
day they were assigned to restrictive housing unit (RHU)
duties, which included observation reviews, crisis
intervention, one-on-one sessions, and review of RHU PSUs.
Hammer alleges that Hamilton and Schwartz-Oscar ignored the
suicidal statements in his PSUs “as an experiment (as
if he were a lab rat) to disrupt plaintiff's mental,
emotional, and physical state, ” as
“encouragement [for Hammer] to kill himself, ”
and “because they were tried [sic] of dealing with
him.” Id. at ¶ 14. Hammer acknowledges
that Hamilton responded to the PSUs but denies that Hamilton
addressed his suicidality. Hammer alleges that such failure
to address his suicidal thoughts fell below professional
noon on June 8th, Hammer acted on his suicidal intent by
lacerating his neck and left forearm with a razor blade,
resulting in substantial blood loss and rendering him
unconcious at one point. Hammer alleges that he was not
observed until 2:00 p.m., and that his injuries were treated
around 2:30 p.m., which involved receiving neck sutures.
Hammer sought to file an inmate complaint regarding Drs.
Hamilton and Schwartz-Oscar's failure to address his
suicidality, but he was not able to promptly obtain complaint
forms and a writing utensil. He alleges that Drs. Hamilton
and Schwartz-Oscar, Captains Schultz and Van Lanen,
Lieutenants Wucherer and Lenz, and John and Jane Does all
agreed to but failed to provide Hammer with complaint forms
and a writing utensil, thereby thwarting his ability to
exhaust his administrative remedies. He also alleges that Dr.
Schwartz-Oscar told Correctional Officer Diedrick to
confiscate Hammer's copies of his June 7th PSUs. Hammer
has sued all defendants in their individual capacities.
states an Eighth Amendment deliberate indifference claim
against Drs. Hamilton and Schwartz-Oscar. To state such a
claim, a plaintiff must allege objective and subjective
elements: (1) the harm that befell him was objectively,
sufficiently serious and a substantial risk to his health or
safety, and (2) the defendants were deliberately, that is,
subjectively, indifferent to that substantial risk.
Farmer v. Brennan, 511 U.S. 825, 832 (1994). In
cases involving suicide or attempted suicide, the objective
element is met by virtue of the act of or attempt to commit
suicide. Sanville v. McCaughtry, 266 F.3d 724, 733
(7th Cir. 2001). In the same context, the subjective element
requires that the defendants (1) subjectively knew the
prisoner was at a substantial risk of committing suicide and
(2) intentionally disregarded the risk. Matos v.
O'Sullivan, 335 F.3d 553, 557 (7th Cir. 2003);
see also Estate of Novack ex rel. Turbin v. County of
Wood, 226 F.3d 525, 529 (7th Cir. 2000).
alleges that Hamilton and Schwartz-Oscar received and
deliberately ignored his PSUs, which stated that Hammer
“has been contemplating on how he's gonna commit
suicide.” Dkt. 20 at ¶ 11. Even after being put on
notice about Hammer's suicidality, Hamilton and
Schwartz-Oscar allegedly took no reasonable action to abate
Hammer's risk of suicide because they wanted to disrupt
his emotional and physical state, intended to encourage
suicide, and were tired of dealing with him. These
allegations are sufficient to state an Eighth Amendment
claim. Because Hammer also alleges that Hamilton and
Schwartz-Oscar were responsible for reviewing and addressing
RHU PSUs and that their failure to address his PSUs fell
below professional accepted judgment, he may also proceed on
a state law medical malpractice claim against Hamilton and
Schwartz-Oscar. See Paul v. Skemp, 2001 WI 42,
¶ 17, 242 Wis.2d 507, 625 N.W.2d 860; 28 U.S.C. §
Hammer's other allegations state a claim. While state
actors must respect a prisoner's right of access to the
courts by not impeding a prisoner's efforts to pursue
legal claims, Hammer's allegation that Schwartz-Oscar
told a correctional officer to confiscate his copies of his
PSUs is insufficient to state an access-to-courts claim
absent an allegation of actual injury. See Ortiz v.
Downey, 561 F.3d 664, 671 (7th Cir. 2009). Hammer's
allegations that multiple defendants failed to provide him
with complaint forms and a writing utensil are also
insufficient to state an access-to-courts claim absent an
allegation that he is presently impeded in preparing or
filing a suit or that he lost some underlying litigation due
to illegal interference and has no meaningful access to
relief. See Christopher v. Harbury, 536 U.S. 403,
405-06, 413-14 (2002); Henderson v. Frank, 293
Fed.Appx. 410, 413 (7th Cir. 2008). Such allegations are not
ineffectual, however, because “when a prisoner cannot
take the required steps to exhaust his administrative
remedies or his state remedies because prison officials are
interfering, any challenge based on exhaustion is bound to
fail.” Spencer v. Sommers, No. 10-cv-288-bbc,
2011 WL 111581, at *4 (W.D. Wis. Jan. 13, 2011) (citing
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)).
defendants' alleged interference with Hammer's
ability to exhaust his remedies is also insufficient to give
rise to a Fourteenth Amendment due process claim because a
procedural protection such as a state-created prison
grievance procedure does not in and of itself create a
property or liberty interest. See Massey v. Helman,
259 F.3d 641, 647 (7th Cir. 2001); see also Albright v.
Oliver, 510 U.S. 266, 272 (1994); Ky. Dep't of
Corr. v. Thompson, 490 U.S. 454, 460 (1989). Any claim
Hammer seeks to make under the Universal Declaration of Human
Rights must ...