United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE
Derek Headrick is representing himself in this civil rights
case. On September 19, 2019, the court screened his amended
complaint and allowed him to proceed on a claim under the
Eighth Amendment based on his allegations that, following a
referral from his primary care physician, the defendants
failed to schedule an appointment at the pain clinic despite
him repeatedly informing them that he was in severe pain.
(ECF No. 13 at 3-4.) Headrick did not know all the names of
those responsible for scheduling appointments, so the court
allowed him to use a John and Jane Doe placeholder. The court
informed Headrick to notify the court once he learned the
names of the Doe defendants.
December 20, 2019, Headrick moved to file a second amended
complaint. (ECF No. 24.) As required by the court's local
rules, he included a proposed second amended complaint along
with his motion. Hendrick identifies one of the people
responsible for scheduling appointments as Tia Hague. He also
seeks to add a claim based on events that happened after he
filed his original complaint. Specifically, Headrick alleges
that he visited the pain clinic on October 30, 2019. (ECF No.
24-1 at ¶ 18.) At that appointment, Dr. Choi (who is not
a current or proposed defendant) allegedly suggested that
minor surgery could help alleviate Headrick's pain.
(Id.) According to Headrick, Dr. Choi did not offer
any other pain relief. (Id.) Dr. Choi referred
Headrick to an orthopedic specialist for his shoulder pain
and told Headrick that he needed get approval for the minor
surgery. (Id.) Dr. Choi also allegedly told Headrick
a second appointment at the clinic would be necessary.
reasons explained below, Headrick fails to state additional
claims in his proposed second amended complaint, so he would
gain nothing were the court to grant his motion. Accordingly,
the court will not allow him to amend his first amended
complaint in the way he proposes because doing so would be
futile. See Foman v. Davis, 371 U.S. 178, 182
Prison Litigation Reform Act (PLRA) applies to this case
because Headrick was incarcerated when he initiated this
lawsuit. Under the PLRA, “No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison or other correctional facility until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). A plaintiff need
not allege facts addressing the affirmative defense of
exhaustion in his complaint; however, when it is obvious from
the face of a complaint that a plaintiff did not exhaust the
available administrative remedies before he initiated his
lawsuit, a court may dismiss the complaint for failure to
state a claim. See Jones v. Bock, 549 U.S. 199, 215
(2007); Reimann v. Frank, 397 F.Supp.2d 1059,
1074-75 (W.D. Wis. 2005).
initiated this lawsuit on August 5, 2019. He now seeks to
state a new claim based on his allegations that the
defendants are delaying approving and/or scheduling surgery.
According to Headrick, Dr. Choi did not recommend surgery
until October 30, 2019, nearly three months after
Headrick initiated this lawsuit. Accordingly, it is plain
from the face of Headrick's proposed second amended
complaint that he did not exhaust the available
administrative remedies regarding his proposed claim before
he initiated this lawsuit. Headrick cannot proceed on that
claim in this case.
clear, Headrick's claim that the defendants delayed
scheduling an appointment at the pain clinic after his
primary care physician recommended an appointment is distinct
from his proposed claim that the defendants are delaying
approving and/or scheduling surgery following Dr. Choi's
recommendation. If Headrick wants to pursue the latter claim,
he must first exhaust the available administrative remedies
as to that claim.
proposed second amended complaint Headrick also seeks to sue
the defendants in their official capacities so that he may
obtain injunctive relief. Headrick does not specify the
injunctive relief he desires, but the court notes that he
appears to have already received the only injunctive relief
he can obtain in connection with his claim that the
defendants delayed scheduling him for an appointment at the
pain clinic. Shortly after Headrick filed his amended
complaint, he sought preliminary injunctive relief-that is,
he asked that an appointment be scheduled at the pain clinic.
(ECF No. 10.) Shortly thereafter, defendant Chrystal Meli
notified the court that Headrick's appointment had been
scheduled, as a result of which the court denied his motion
for preliminary injunctive relief as moot. (ECF No. 16 at
1-2; ECF No. 19.) Headrick's proposed second amended
complaint confirms he had an appointment at the pain clinic
on October 30, 2019. (ECF No. 24-1 at ¶ 18.) Given that
the appointment has occurred, it appears that the only relief
available to Headrick is monetary damages for the pain and
suffering he allegedly endured during the delay.
extent Headrick wants the court to order the defendants to
schedule surgery based on Dr. Choi's recommendation, he
cannot obtain that relief in this case. A preliminary
injunction is appropriate only if it seeks relief of the same
character sought in the underlying complaint and deals with a
matter presented in that underlying complaint. Kaimowitz
v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997)
(citations omitted)); see Peace v. Pollard, No.
15-cv-481, 2017 WL 564016 at *1 (E.D. Wis. Feb. 10, 2017)
(citations omitted). As already explained, Headrick cannot
proceed with a claim based on the defendants' alleged
delay in scheduling surgery because he did not exhaust the
available administrative remedies in connection with that
claim before he initiated this lawsuit. In short, he fails to
state a claim against the defendants in their official
in light of Headrick identifying Tia Hague as one of the
people responsible for scheduling appointments, the court
will direct the clerk's office to add her as a defendant.
The court will leave the John and Jane Doe placeholders in
the case for now. As ordered in the scheduling order,
Headrick must identify any remaining Doe defendants by
January 20, 2020, or explain to the court why he is unable to
do so. (ECF No. 21 at 1.)
IT IS ORDERED that Headricks motion to amend/correct
his complaint (ECF No. 24) is DENIED without
court DIRECTS the clerks office to add Tia
Hague as a defendant. The clerks office may leave the John
and Jane Doe placeholders in place to allow Headrick to
identify additional defendants, if any, by January 20, 2020.
If the court does not hear from Headrick by the deadline, the
court will terminate the John and Jane Doe placeholders
without further notice to Headrick.
IS FURTHER ORDERED that, under an informal service
agreement between the Wisconsin Department of Justice and
this court, a copy of the amended complaint (ECF No. 9), the
court's screening order (ECF No. 13), and this order will
be electronically transmitted to the Wisconsin Department of
Justice for service on defendant Tia Hague. It is
ORDERED that, under the ...