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Melville v. Hamblin

Nov 20, 2013
Case No. 13-CV-972 (E.D. Wis. Nov. 20, 2013)


In Melville v. Gary, 76 Md. 221, 223, an action of deceit, the Court adopted this language of an English case: "`The foundation of an action of this kind * * * is fraud and deceit in the defendant, and damage to the plaintiff.

Summary of this case from Richardson v. Boato


Case No. 13-CV-972




The plaintiff, a Wisconsin state prisoner, filed a pro se complaint under 42 U.S.C. § 1983. This matter comes before the Court on the plaintiff's petition to proceed in forma pauperis. He has been assessed and paid an initial partial filing fee of $2.10.

The 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). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a synonym for "frivolous," "is more usefully construed as intended to harass." Lindell v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).

To 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). It is not necessary for the plaintiff to plead specific facts and his statement need only "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers "labels and conclusions" or "formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, "that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citation omitted).

In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first, "identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, "assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

The plaintiff was incarcerated at Milwaukee Secure Detention Facility (MSDF) and Oshkosh Correctional Institution (OSCI) at all times relevant. The defendants are: Wisconsin Department of Corrections (DOC) Secretary Gary Hamblin, DOC Bureau of Health Services Director James Greer, OSCI Institution Complaint Examiner Carrie Spranger, OSCI Warden Judy Smith, MSDF Warden Floyd Mitchell, OSCI Health Services Unit Manager Mr. Golden, Danielle Foster, MSDF Health Services Unit Manager Ms. Watts, Dr. Joseph, Dr. Murphy, and Jane Does 1-3.

The plaintiff alleges that since he entered the DOC over seventeen months ago, the defendants have failed to treat him for his constant and continuous nerve pain. He claims that the defendants' failure to treat the condition causes him significant pain and suffering, and violates his rights under the Eighth Amendment. He seeks injunctive and declaratory relief, and monetary damages.

The Court finds that the plaintiff may proceed on an Eighth Amendment deliberate indifference to a serious medical need claim. But he may not proceed against defendants Gary Hamblin, Judy Smith, and Floyd Mitchell because they are not alleged to have been personally involved in the plaintiff's claim. See Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009) (Section 1983 makes public employees liable "for their own misdeeds but not for anyone else's.").

Motion for Preliminary Injunction

The plaintiff has filed a motion for preliminary injunction. He seeks an order that the defendants immediately provide him with the same medication and treatment deemed appropriate by his personal physicians prior to his incarceration and that they provide a physician trained in nerve pain to assess and treat him. The plaintiff also seeks an order that the defendants provide a physician trained in "spinal core stimulator implants" to assess and treat him, that they comply with recommended treatment of these physicians, and that they assess and treat any medical issues that arise from this point further as appropriate. (Compl. at 9.)

A party seeking a preliminary injunction must demonstrate that he is reasonably likely to succeed on the merits, that he is experiencing irreparable harm that exceeds any harm his opponent will suffer if the injunction issues, that he lacks an adequate remedy at law, and that the injunction would not harm the public interest. Christian Legal Soc'y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006). "If the moving party meets this threshold burden, the district court weighs the factors against one another in a sliding scale analysis . . . which is to say the district court must exercise its discretion to determine whether the balance of harms weighs in favor of the moving party or whether the nonmoving party or public interest will be harmed sufficiently that the injunction should be denied. Id.; see Joelner v. Vill. of Wash. Park, 378 F.3d 613, 619 (7th Cir. 2004).

A deliberate indifference claim requires both an objectively serious risk of harm and a subjectively culpable state of mind. Edwards v. Snyder, 478 F.3d 827, 830 (7th Cir. 2007); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). A deliberate indifference claim based on inadequate medical treatment requires, to satisfy the objective element, a medical condition "that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would perceive the need for a doctor's attention." Edwards, 478 F.3d at 830 (quoting Greeno, 414 F.3d at 653). The subjective component of a deliberate indifference claim requires that the prison official knew of "a substantial risk of harm to the inmate and disregarded the risk." Greeno, 414 F.3d at 653 (citing Farmer, 511 U.S. at 834). Mere medical malpractice or a disagreement with a doctor's medical judgment is not deliberate indifference. Edwards, 478 F.3d at 830-31 (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976); Greeno, 414 F.3d at 653; Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)). Yet, a plaintiff's receipt of some medical care does not automatically defeat a claim of deliberate indifference if a fact finder could infer the treatment was "so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate" a medical condition. Id. (citing Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)).

As indicated, the plaintiff seeks that the Court order the defendants to provide him with specific medical care. However, attachments to the complaint and the plaintiff's October 21, 2013, supplement to his motion for preliminary injunction reveal that he is receiving medical care. Specifically, Dr. Murphy recently increased the plaintiff's Duloxotine for leg pain and, as of September 23, 2013, the plaintiff had an appointment scheduled to discuss his chronic pain. (Docket No. 13-1 at 1, 2.) The plaintiff may be able to prove that the defendants have acted with deliberate indifference in the course of treating him. However, at this stage of the proceedings, he has not demonstrated a reasonable likelihood of success on the merits of his deliberate indifference claim. Rather, his motion and the complaint allegations demonstrate that he is receiving ongoing care, albeit not the care he prefers. This, the plaintiff's request for injunctive relief will be denied.

Plaintiff's Motion to Appoint Counsel

The plaintiff has filed a request for pro bono counsel. The Court has 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). As a threshold matter, litigants must make a reasonable attempt to secure private counsel on their own. Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2007). If the plaintiff makes a reasonable attempt to secure counsel, the court must examine "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). This inquiry focuses not only the plaintiff's ability to try his case, but also includes other "tasks that normally attend litigation" such as "evidence gathering" and "preparing and responding to motions." Id.

In this case, the plaintiff has not provided any indication that he has unsuccessfully attempted to obtain legal counsel on his own. Nonetheless, the plaintiff has provided a detailed complaint setting forth his claims. Moreover, the issues in this case appear at this stage to be straightforward and uncomplicated. Therefore, at this juncture, given the nature of the case, it appears that the plaintiff is competent to litigate this case himself. Accordingly, the plaintiff's motion for appointment of counsel will be denied.

Motion to Amend the Complaint

The plaintiff has filed a motion to amend the complaint to substitute DOC Secretary Edward Wall for defendant Gary Hamblin. However, based on defendant Hamblin's dismissal, this request is now moot.

IT IS THEREFORE ORDERED that the plaintiff's motion for preliminary injunction (Docket # 2) be and hereby is DENIED.

IT IS FURTHER ORDERED that the plaintiff's motion for leave to proceed in forma pauperis (Docket # 4) be and hereby is GRANTED.

IT IS FURTHER ORDERED that the plaintiff's motion to appoint counsel (Docket # 6) be and hereby is DENIED.

IT IS FURTHER ORDERED that the plaintiff's motion to amend/correct complaint (Docket #12) be and hereby is DENIED AS MOOT.

IT IS FURTHER ORDERED that defendants Gary Hamblin, Judy Smith, and Floyd Mitchell be and hereby are DISMISSED.

IT IS FURTHER ORDERED that pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, copies of plaintiff's complaint and this order are being electronically sent today to the Wisconsin Department of Justice for service on the state defendants.

IT IS ALSO ORDERED that, pursuant to the informal service agreement between the Wisconsin Department of Justice and this court, the defendants shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order.

IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of Corrections or his designee shall collect from the plaintiff's prison trust account the $347.90 balance of the filing fee by collecting monthly payments from the plaintiff's prison trust account in an amount equal to 20% of the preceding month's income credited to the prisoner's trust account and forwarding payments to the clerk of the court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly identified by the case name and number assigned to this action.

IT IS ALSO ORDERED that a copy of this order be sent to the warden of the institution where the inmate is confined.

IT IS FURTHER ORDERED that the plaintiff shall submit all correspondence and legal material to:

Honorable Rudolph T. Randa
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT'S CHAMBERS. It will only delay the processing of the matter.

The plaintiff is notified that from now on, he is required under Federal Rule of Civil Procedure 5(a) to send a copy of every paper or document filed with the court to the opposing party or, if the opposing party is represented by counsel, to counsel for that party. Fed. R. Civ. P. 5(b). The plaintiff should also retain a personal copy of each document. If the plaintiff does not have access to a photocopy machine, he may send out identical handwritten or typed copies of any documents. The court may disregard any papers or documents which do not indicate that a copy has been sent to the opposing party or that party's attorney, if the party is represented by an attorney.

The plaintiff is further advised that failure to make a timely submission may result in the dismissal of this action for failure to prosecute.

In addition, the parties must notify the Clerk of Court of any change of address. Failure to do so could result in orders or other information not being timely delivered, thus affecting the legal rights of the parties.

Dated at Milwaukee, Wisconsin, this 20th day of November, 2013.




U. S. District Judge

Summaries of

Melville v. Hamblin

Nov 20, 2013
Case No. 13-CV-972 (E.D. Wis. Nov. 20, 2013)

In Melville v. Gary, 76 Md. 221, 223, an action of deceit, the Court adopted this language of an English case: "`The foundation of an action of this kind * * * is fraud and deceit in the defendant, and damage to the plaintiff.

Summary of this case from Richardson v. Boato
Case details for

Melville v. Hamblin

Case Details



Date published: Nov 20, 2013


Case No. 13-CV-972 (E.D. Wis. Nov. 20, 2013)

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