Shaw v. Kemper
| Decision Date | 30 March 2021 |
| Docket Number | Case No. 20-CV-431-JPS |
| Parties | TERRANCE J. SHAW, Plaintiff, v. PAUL S. KEMPER, KEVIN CARR, MR. KRUEGER, SGT. LANGAFELT, C.O. OBUCINA, A. LARSON, MICHELLE BONES, E. DAVIDSON, CINDY O'DONNELL, CAPTAIN MILLER, SGT. CRUZ, C.O. LANG, LON BECHER, KEITH SPRINGSTUBE, C.O. CHRISTIANSON, SGT. GUDAL, JUSTIN SCHULLER, and C.O. STOIBER, Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Plaintiff Terrance J. Shaw, an inmate confined at Racine Correctional Institution ("RCI"), filed a pro se complaint under 42 U.S.C. § 1983 alleging that his rights under the Eighth Amendment, the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act ("RA") were violated. (Docket #1). Plaintiff has paid $350.00 towards the filing fee. This order screens Plaintiff's complaint and resolves his other pending motions.
1. SCREENING THE COMPLAINT
1.1 Federal Screening Standard
Under the Prison Litigation Reform Act, the Court must screen complaints brought by prisoners seeking relief from a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint if the prisoner raises 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).
In determining whether the complaint states a claim, the Court applies the same standard that applies to dismissals under Federal Rule of Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017) (citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th Cir. 2012)). To state a claim, a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true, to "state a claim for relief 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)). "A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that someone deprived him of a right secured by the Constitution or the laws of the United States, and that whoever deprived him of this right was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints liberally and holds them to a less stringent standard than pleadings drafted by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)).
1.2 Plaintiff's Allegations
Plaintiff has painful arthritis in his hands and a degenerative bone disease in his hips and knees. (Docket #1 at 3-4). The degenerative bone disease in his knees requires ice three times a day. (Id.) Defendant Obucina ("Obucina") is a correctional officer ("C.O.") at RCI and Defendant Langafelt ("Langafelt") is a Sergeant there. On August 13, 2017, Plaintiff asked Obucina for assistance from a unit aid to get ice. (Id. at 3). Obucina responded, "[y]our problems don't matter to me." (Id.) Plaintiff then asked Langafelt for a unit aid to get ice. (Id.) Langafelt responded, "I will take care of it," however, no unit aid came to help Plaintiff get ice all day. (Id. at 3-4). Plaintiff should have had access to a wheelchair, but there was no wheelchair provided to him. (Id.) Inmate Daniel Dauffenbach ("Inmate Dauffenbach") was working as a unit aid that day and stated that Obucina and Langafelt ordered him to take away Plaintiff's wheelchair. (Id. at 14).
Later on August 13, 2017, Plaintiff filed Inmate Complaint ("IC")1 RCI-2017-22426. (Id. at 4). On August 16, 2017, Defendant A. Larson("Larson"), an ICE employee, returned the complaint and instructed Plaintiff that he must attempt to resolve the issue by contacting Unit Manager Krueger. (Id.) On August 17, 2017, Plaintiff wrote to Defendant Krueger ("Krueger"), informing him that Plaintiff was not accommodated for his medical needs on August 13, 2017. (Id.) On August 24, 2017, Plaintiff wrote to the Health Services Unit ("HSU") "inquiring about being accommodated both indoor and outdoor with a wheelchair 24-7." (Id.) The HSU responded on August 27, 2017, stating that "[y]our restriction for wheelchair indoors/outdoors and 'General' use is up to date." (Id.)
On August 30, 2017, Plaintiff resubmitted RCI-2017-22426. (Id. at 4-5). On September 1, 2017, the ICE acknowledged Plaintiff's IC, summarizing that Plaintiff (Id. at 5). Later that day, ICE employee Defendant Michelle Bones ("Bones") dismissed the IC. (Id.) Bones noted to Plaintiff, "[y]ou are advised not to describe the actions of staff contrary to the facts in your letter." (Id.) Plaintiff claims Bones's statement to him is a "threat to an elderly person." (Id.) On September 8, 2017, the Warden, Defendant Paul Kemper ("Kemper"), accepted the ICE's recommendation and dismissed RCI-2017-22426. (Id.) Plaintiff appealed on September 8, 2017. (Id.)
On November 26, 2017, Plaintiff was taking a shower when his wheelchair was taken away. (Id. at 6). Later that day, Plaintiff filled out aninterview/information request to Krueger, informing him that (Id. at 6.) Inmate Dauffenbach stated he was instructed by Defendant Sergeant Keith Springstube ("Springstube") to remove the wheelchair while Plaintiff was in the shower. (Id. at 6, 14).
On November 17, 2017, Plaintiff filed IC RCI-2017-30180, against Krueger, Bones, and Kemper, "for ongoing/repeated deliberate indifference to Plaintiff's ADA/RA and Elder Abuse Rights, in which they receive Federal financial assistance." (Id. at 5). On November 29, 2017, Plaintiff added an addendum/supplement to RCI-2017-30180 regarding the November 26, 2017 shower incident. (Id. at 6). ICE employee, Defendant Captain Miller ("Miller"), interpreted the addendum to RCI-2017-30180 as a separate issue and created a new IC number, RCI-2017-30693, to address it. (Id. at 7). On November 30, 2017, the ICE issued a receipt acknowledging RCI-2017-30404, which was about the November 26, 2017 shower incident. (Id. at 7). On December 5, 2017, the ICE issued a receipt acknowledging that Krueger was informed through documentation of another wheelchair incident with staff. (Id.)
On December 11, 2017, Miller affirmed-with modification-two of Plaintiff's IC's (RCI-2017-30693 and RCI-2017-30404). As to each, Miller affirmed the IC but stated "[i]t appears that there was no malice by staff, merely a misunderstanding of an unclear restriction as entered into WICS." (Id. at 8). Later that day, Defendant Lon Becher ("Becher") affirmed. (Id.) OnDecember 13, 2017, Plaintiff appealed because he was not satisfied with the result, stating that Miller had indemnified the guilty staff from blame and had ignored Plaintiff's medical records. (Id.) On December 15, 2017, the CCE acknowledged both appeals. (Id. at 9). On December 21, 2017, CCE employee, Defendant Emily Davidson ("Davidson") recommended that RCI-2017-30404 and RCI-2017-30693 be affirmed with the modifications made by Miller. (Id. at 10). On that same date, Defendant Cindy O'Donnell ("O'Donnell"), of the Office of the Secretary, affirmed with Miller's modifications. (Id.)
On December 19, 2017, the ICE recommended affirmation of RCI-2017-30180, with Miller writing "[i]t appears that there was no malice by staff, merely a misunderstanding of an unclear restriction as entered into WICS." (Id. at 9). Kemper affirmed on December 19, 2017. The next day, Plaintiff appealed because he objected to Miller's findings of fact. (Id.) The CCE acknowledged the appeal on January 3, 2018. (Id. at 10). On January 16, 2018, Davidson recommended that RCI-2017-30180 be affirmed and O'Donnell affirmed it. (Id. at 11).
On December 6, 2017, Plaintiff missed a doctor's appointment because he was not provided with a wheelchair. (Id. at 7). Plaintiff wrote to the HSU about missing his appointment. On December 13, 2017, the HSU responded, stating that a "[w]heelchair shall be available" and that "there should never been a problem with being seen due to this." (Id. at 9). On January 4, 2018, the ICE assigned number RCI-2018-371 to the IC that Plaintiff submitted. (Id. at 10). On January 18, 2018, Miller recommended dismissal of this IC, noting that "[w]hile the inmate did miss his appointment, it does not appear as if he informed the Unit Sergeant he was having a problem so that the Sergeant could fix it." (Id. at 11). Kemperagreed with the ICE and dismissed RCI-2018-371 on January 18, 2018. (Id.) Plaintiff appealed on January 23, 2018, as he felt Miller was blaming the victim (i.e., Plaintiff) for what happened. (Id.) On February 6, 2018, CCE Davidson recommended dismissal of RCI-2018-371 because "[t]here is no evidence the inmate attempted to make the scheduled appointment or relay to unit staff he would miss the Doctor appointment." (Id. at 12). O'Donnell agreed with the CCE and dismissed the IC on February 6, 2018. (Id.)
On January 13, 2018, Plaintiff filed a new IC, asserting that staff were continuing to ignore the HSU...
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