United States District Court, E.D. Wisconsin
ORDER ADOPTING JUDGE DUFFIN'S RECOMMENDATION
(DKT. NO. 10), DENYING MOTION TO APPOINT COUNSEL (DKT. NO 11)
AND RETURNING CASE TO JUDGE DUFFIN
PAMELA PEPPER UNITED STATES DISTRICT COURT JUDGE
Lamarray Chase, Sr. is representing himself. He filed a
lawsuit under 42 U.S.C. §1983, alleging that various
officials at the Milwaukee County Jail were deliberately
indifferent to his medical needs after he'd been shot.
Dkt. No. 1. This case is assigned to Magistrate Judge William
Duffin. He reviewed the complaint, granted the
plaintiff's motion for leave to proceed without prepaying
the filing fee and issued a report and recommendation, dkt.
no. 9, because some of the parties have not appeared in the
lawsuit and have not been able to decide whether to consent
to the magistrate judge's authority to issue final
decisions in the case. Coleman v. Labor & Indus.
Review Comm. of the State of Wis., 860 F.3d 461, 475
(7th Cir. 2017); 28 U.S.C. §§636(b)(1)(A),
plaintiff did not object to Judge Duffin's
recommendation, so the court reviews it for clear error.
Fed.R.Civ.P. 72(a); Johnson v. Zema Sys. Corp., 170
F.3d 734 (7th Cir. 1999). The court finds that Judge Duffin
did not commit any clear error in his analysis and will adopt
plaintiff's complaint concerns medical care he received
while incarcerated at Milwaukee County Jail. Dkt. No. 1 at 2.
He listed the jail, Nursing Staff, David A. Clarke, Major
Debra Burmeister, C.O. Schmitt, C.O. Blue, C.O. Whiteside and
Lt. Gold as defendants. Id. at 1. He'd been
shot, and he alleged that nurses were not changing his
dressing regularly or helping him shower. Id. He
asserted that he had to sleep on bloody sheets. Id.
at 2. The plaintiff said that he complained to defendants
Schmitt, Blue, Whiteside and Gold about the lack of medical
care. Id. The plaintiff alleged that he was in a lot
of pain and developed an infection after about two and a half
months. Id. Ultimately, he had to be hospitalized
and undergo surgery to remove the bacteria from his wound.
Duffin made several recommendations. First, he recommended
that this court dismiss the jail as a defendant because it is
not a suable entity under §1983. Dkt. No. 10 at 3-4. The
court agrees. Jails, and sheriff's departments, are not
“legal entit[ies] separable from the county government
which [they] serve  . . . .” Whiting v. Marathon
Cty. Sheriff's Dept., 382 F.3d 700, 704 (7th Cir.
2004). As Judge Duffin noted, there are instances in which a
county can be sued under §1983, dkt. no. 10 at 4, such
as when a plaintiff alleges that a government policy or
custom resulted in a constitutional violation, see Wilson
v. Cook Cty., 742 F.3d 775, 779 (7th Cir. 2014) (citing
Monell v. Dep't of Social Sev's of City of New
York, 436 U.S. 658 (1978)). But the plaintiff's
complaint does not allege that a county custom, practice or
policy caused him harm. The court will adopt Judge
Duffin's recommendation and dismiss the jail as a
Judge Duffin recommended that this court dismiss defendants
Clarke and Burmeister as defendants. Dkt. No. 10 at 4-5. He
noted that though the plaintiff included Clarke and
Burmeister in the caption of his complaint, the body of the
complaint did not include any factual allegations about them.
A plaintiff “must demonstrate a causal connection
between (1) the sued official and (2) the alleged
misconduct.” Colbert v. City of Chi., 851 F.3d
649, 657 (7th Cir. 2017) (citing Wolf-Lille v.
Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)). Without
any allegations about Clarke or Burmeister, the plaintiff
cannot demonstrate a connection between these defendants and
the alleged violations of his rights. The court will adopt
Judge Duffin's recommendation and dismiss Clarke and
Burmeister as defendants.
Judge Duffin recommended that this court allow the plaintiff
to pursue claims against the remaining defendants that they
violated the Eighth Amendment by exhibiting deliberate
indifference to his medical needs. Judge Duffin noted that
the plaintiff did not explain in the complaint whether he was
a pretrial detainee or convicted prisoner at the time of
these events. Before 2015, that issue would not have been
relevant to this court's determination about whether the
plaintiff had stated a claim for deliberate indifference.
Phillips v. Sheriff of Cook Cty., 828 F.3d 541, 554
(7th Cir. 2016). After the Supreme Court decided Kingsley
v. Hendrickson, 135 S.Ct. 2466 (2015), however, the
Seventh Circuit Court of Appeals held that courts must
analyze a constitutional claim based on medical care
differently for pretrial detainees and convicted prisoners.
Miranda v. Cty. of Lake, 900 F.3d 335, 352 (7th Cir.
2018). Now, courts analyze a convicted prisoner's claims
under an Eighth Amendment standard and a pretrial
detainee's claims under the Fourteenth Amendment, using
the “objective reasonable inquiry identified in
Eighth Amendment standard is more stringent than the
Fourteenth Amendment standard. To state a claim for
deliberate indifference to serious medical needs under the
Eighth Amendment, a plaintiff must allege that (1) he
suffered from an objectively serious medical condition, and
(2) that the defendants were deliberately indifferent to that
condition. Wilson v. Adams, 901 F.3d 816, 820 (7th
Cir. 2018) (citations omitted). Officials are deliberately
indifferent when they disregard known conditions that pose
excessive risks to an inmate's health. Id.
Duffin applied the Eighth Amendment standard, the more
stringent standard, explaining that if the plaintiff had
stated a claim under the more stringent Eighth Amendment
standard, he necessarily would have stated a claim under the
Fourteenth Amendment. Dkt. No. 10 at 5-6. Judge Duffin
recommended that this court allow the plaintiff to proceed
against “Nursing Staff” for failing to change his
dressings and help him shower. He also recommended that this
court substitute “John and Jane Doe Nurses” for
“Nursing Staff.” Id. at 6; see
Donald v. Cook Cty. Sheriff's Dept., 95 F.3d 548,
556 (7th Cir. 1996). The court agrees and will substitute
“John and Jane Doe Nurses” for “Nursing
Staff” and permit the plaintiff to proceed against the
John and Jane Doe Nurses.
Duffin also recommended that the court add Nurse Franko as a
defendant, Donald, 95 F.3d at 556, and allow the
plaintiff to proceed against her. Dkt. No. 10 at 6. The court
agrees. The plaintiff alleges that Franko failed to help him
shower on the days he needed one. Dkt. No. 1 at 2. That is
sufficient to allege that she acted with deliberate
court also agrees with Judge Duffin's recommendation to
allow the plaintiff to proceed against Schmitt, Blue,
Whiteside and Gold based on the plaintiff's allegations
that he complained to them about his medical care. As Judge
Duffin pointed out, nonmedical officers are entitled to defer
to jail health professionals' judgment, but they still
can be subject to liability if they know (or have reason to
know) that an inmate is receiving inadequate (or no) medical
care. McGee v. Adams, 721 F.3d 474, 483 (7th Cir.
2013). The plaintiff may proceed against defendants Schmitt,
Blue, Whiteside and Gold for failing to ensure he was
receiving adequate medical care.
the court will deny the plaintiff's motion to appoint
counsel. It is too early for the court to consider whether to
appoint a lawyer for the plaintiff. The next step in the
process is for the court to serve the complaint on the
defendants, and to give the defendants a chance to answer or
respond to the complaint. Until the defendants answer, there
isn't anything that a lawyer could do for the plaintiff.
Kadamovas v. Stevens, 706 F.3d 843, 845 (7th Cir.
2013) (“[U]ntil the defendants respond to the
complaint, the plaintiff's need for assistance of counsel
. . . cannot be gauged.”).
the defendants have answered the complaint, the plaintiff may
renew his motion. The plaintiff should be aware, however,
that the court cannot appoint a lawyer for every inmate who
asks. Courts have discretion to recruit counsel to represent
a litigant who is unable to afford one in a civil case.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.
2013); 28 U.S.C. §1915(e)(1); Ray v. Wexford Health
Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
Before a court will do so, a litigant must make a reasonable
attempt to secure private counsel on his own. Pruitt v.
Mote, 503 F.3d 647, 653 (7th Cir. 2007). Once a
plaintiff demonstrates he has made a reasonable attempt to
secure counsel on his own, the court examines “whether
the difficulty of the case - factually and legally - exceeds
the particular plaintiff's capacity as a layperson to
coherently present it.” Navejar, 781 F.3d at
696 (citing Pruitt, 503 F.3d at 655). To decide
this, the court looks not only at a plaintiff's ability
to try his case, but at his ability to perform other
“tasks that normally attend litigation” such as
“evidence gathering” and “preparing and
responding to motions.” Id.
plaintiff's motion says that he contacted three lawyers
seeking help, without success. He attached to his motion
letters from two of those lawyers. The court is satisfied
that he has made a reasonable attempt to find a lawyer on his
own. The court notes, however, that the circumstances the
plaintiff describes in his motion are not unique-most inmates
who file civil cases have no legal training, limited
education, and limited resources. Nearly all inmates ask the
court to recruit counsel to represent them. As a result, the
demand for pro bono attorneys is very high, but the
supply of attorneys who have the time or ability to volunteer
their time to represent inmates ...