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Grice v. Tapio

United States District Court, W.D. Wisconsin

December 17, 2019

REGIS GRICE, Plaintiff,
v.
TAPIO, et al., Defendants.

          ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE

         Pro se plaintiff Regis Grice, a prisoner at Waupun Correctional Institution, is proceeding against defendants Tapio and Marchant on Eighth Amendment deliberate indifference and state negligence claims related to alleged delays and mishandling of his degenerative hip condition, and against Dr. Jeanpierre, Kuepper, Frame, Deblanc, Tritt, and Larson for their alleged refusal to approve him for a special mattress. Grice has filed a motion to alter or amend (dkt. 51), and for the court to find him an attorney (dkt. 52). For the reasons that follow, I am granting in part and denying in part Grice's motion to alter or amend, and I am denying his request for assistance in recruiting counsel without prejudice.

         Motion to Alter or Amend (dkt. 51)

         Grice seeks to alter or amend several aspects of the court's September 30, 2019, order that allowed him leave to proceed on additional claims set forth in his proposed amended complaint (dkt. 39).

         First, Grice complains that the order incorrectly noted a Dated: while he alleged that he submitted an information request on November 28, 2018, the order used the year 2019. Grice had alleged that date in his amended complaint (dkt. 31 at 7) and I will note this for the record, but it doesn't affect any of the claims upon which Grice is proceeding.

         Second, Grice takes issue with a statement on page 4 of the order that “Tapio requested that Dr. Jeanpierre opine about the appropriateness of surgery.” (Id. at 4.) Grice claims this is incorrect; that actually the discussions were between Jeanpierre and other individuals, “Laning, Jesse K, Hauge, Tya L.” Grice did not include this specific allegation in his amended complaint and these individuals are not part of this lawsuit, but I will accept that Grice's assertion that Tapio was not involved in the discussions about surgery. To the extent this modification would impact Tapio's answer to Grice's amended complaint, he may file an amended answer.

         Third, and most substantive, Grice asks that I reconsider my decision denying him leave to proceed against Health Services Unit (HSU) Manager Marchant related to Marchant's alleged failure to respond to several of Grice's Health Service Requests (HSRs) because Grice had not actually alleged that Marchant received those requests. (See 9/30/2019 Order (dkt. 39) 7-8.) I previously concluded that it would be unreasonable to infer that Marchant knew about those HSRs because Grice alleged that while he directed the request to the “HSU manager, ” other HSU staff members responded, and Grice has not alleged facts suggesting that Marchant directed them to respond.

         Now, Grice seeks reconsideration, pointing to several paragraphs of his amended complaint he claims support a claim against Marchant, pointing to paragraphs 13, 18, 19, 42, 41, 44, 62, 71 and 72 of his Amended Complaint (dkt. 31). I will address each and explain why I will now allow Grice to proceed against Marchant for a few additional incidents.

         Grice may not proceed against Marchant for his allegations in paragraph 13, in which he alleges that he submitted an HSR complaining that he wanted the HSU manager to handle his requests. Since Grice's allegations make it clear that other HSU staff responded to this HSR, it would unreasonable to infer that Marchant was involved.

         As for paragraphs 18 and 19, Grice already is proceeding against Marchant with respect to those allegations, which related to Marchant's September 27, 2018, response to Grice's Information Requests. (3/14/2019 Order (dkt. 12) 8.)

         Grice may not proceed on his allegations in paragraph 41, which relate to a December 1, 2018, HSR because Grice does not allege that Marchant received it or responded to it.

         In paragraph 42, Grice alleges that on December 4, 2018, he directed an Information Request to the HSU manager complaining that his pain medication was not working and that the “HSU manager” responded on December 6 that his appointment to see a provider was moved up. I previously observed that it appears from the Information Request that Grice has submitted that a nurse-i.e., not Marchant- responded to this request. (See Ex. 26 (dkt. 31-1, at 5).) But Grice insists that the HSU Manager responded, which I must accept as true at the pleading stage.

         Even so, the response that Grice received does not support a reasonable inference of deliberate indifference. Grice was asking to see a physician for new pain medication, and it would be unreasonable to infer that Marchant, who is not a physician, could do anything more than hasten Grice's appointment with his physician, and Marchant's response indicates she took that step. Indeed, I previously noted that Grice's records show that Dr. Jeanpierre did meet with Grice a week later, on December 13. (9/30/2019 Order (dkt. 39) 3; Ex. 27 (dkt. 31-1 at 8).) Since Grice's allegations make it clear that all he wanted was an appointment with a physician to discuss his medications, and Grice did see a doctor one week later, I will not allow Grice to proceed on his allegations in paragraph 42.

         In paragraph 44, Grice alleges that he submitted an HSR about his pain, but he does not allege that Marchant responded or reviewed the request, so he may not proceed ...


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