The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEWART D. BROWN,
Plaintiff,
v. Case No. 19-cv-1762-bhl
CORY ROESELER, et al.,
Defendants.
ORDER SCREENING AMENDED COMPLAINT
On October 6, 2020, the Court screened plaintiff Stewart D. Brown’s pro se complaint
filed under 42 U.S.C. §1983, concluded that it failed to state a claim, and ordered him to file an
amended complaint by November 5, 2020. (ECF No. 11.) On October 23, 2020, the Court
granted Brown’s motion to stay this case because, he asserted, he was unable to litigate the case
due to an indefinite lockdown at his prison. (ECF No. 14.) Despite the purported lockdown,
Brown submitted an amended complaint well in advance of the deadline. (ECF No. 15.) The
stay is therefore LIFTED, and the amended complaint is before the Court for screening.
Screening Standard
As explained in the previous order, the Court must screen complaints brought by
prisoners seeking relief from a governmental entity or 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 amended complaint states a claim, the Court applies the same
standard that it applies when considering whether to dismiss a case 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, the
amended 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 amended 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 Atlantic 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 Cty.
Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. Cty. of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes liberally complaints filed by plaintiffs
who are representing themselves. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d
768, 776 (7th Cir. 2015)).
Background Allegations
Brown’s amended complaint is nearly identical to his original complaint. He asserts
claims against the same three defendants named in his original complaint, Sheboygan County
Sheriff Cory Roeseler and medical officers Dr. John Doe and Nurse Jane Doe at the Sheboygan
County Detention Center. (ECF No. 15 at 2.) His hand-written allegations are mostly identical
to the typed allegations in his original complaint, and, having detailed them in the earlier
screening order, the Court will not recount them here. (See ECF No. 11 at 3–4.)
The only differences are that in his original complaint, Brown alleged that “jail officials”
told him they had spoken with his specialist, Dr. Welsch, about Brown’s need for treatment of
his prostate cancer by the end of summer 2018. (ECF No. 1 at 5.) In his amended complaint,
Brown alleges that Dr. John Doe and Nurse Jane Doe were the “jail officials” who spoke with
Dr. Welsch about Brown’s cancer treatment. (ECF No. 15 at 4.) Brown states he asked Dr. John
Doe and Nurse Jane Doe about his treatment over the summer months and was told only that he
“had plenty of time and that appointment would be scheduled.” (Id. at 4–5.) Brown also newly
alleges that he sent a letter to Sheriff Roeseler, but that letter “went unanswered.” (Id. at 5.)
Brown reiterates that he never received treatment, and now his only options are chemotherapy or
surgery. (Id. at 5–6.) He seeks declaratory relief and monetary damages. (Id. at 7.)
Analysis
As previously explained, the Court analyzes Brown’s claims under the Eighth
Amendment, which “protects prisoners from prison conditions that cause the wanton and
unnecessary infliction of pain, including . . . grossly inadequate medical care.” Gabb v. Wexford
Health Sources, Inc., 945 F.3d 1027, 1033 (7th Cir. 2019) (quoting Pyles v. Fahim, 771 F.3d
403, 408 (7th Cir. 2014)) (internal quotations omitted). To state a valid Eighth Amendment
claim, Brown must allege both that he “suffered from an objectively serious medical condition”
and that the defendants were “deliberately indifferent to that condition.” Petties v. Carter, 836
F.3d 722, 728 (7th Cir. 2016) (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)). A prison
official shows deliberate indifference when he “realizes that a substantial risk of serious harm to
a prisoner exists, but then disregards that risk.” Perez, 792 F.3d at 776 (citing Farmer, 511 U.S.
at 837). A delay in treatment also may constitute an Eighth Amendment violation, “if the delay
exacerbated the injury or unnecessarily prolonged an inmate’s pain.” Arnett v. Webster, 658 F.3d
742, 753 (7th Cir. 2011) (citing McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir. 2010)).
Although Brown’s allegations are spare, he has alleged just enough to avoid dismissal of
his Eighth Amendment claim against Dr. John Doe and Nurse Jane Doe. He alleges that these
defendants spoke with his specialist and knew of his need for prompt treatment but then failed to
provide any treatment. His allegation that their delay and disregard worsened Brown’s cancer,
which now requires more significant treatment than it did while he was in prison in the summer
2018, is sufficient to allow Brown to proceed on his claims against them.
The Court will not permit Brown to proceed on his claim against Sheriff Roeseler,
however. Brown cannot maintain a claim against Roeseler merely because he is the Sheriff of
Sheboygan County. See Iqbal, 556 U.S. at 676. Brown instead must allege that Roeseler was
personally involved in his delayed treatment or, at least, was aware of the delay in treatment and
facilitated, approved, condoned, or knowingly ignored it. Id.; see Sanville v. McCaughtry, 266
F.3d 724, 740 (7th Cir. 2001). Brown’s only allegations against Roeseler are that he wrote a
letter to the Sheriff that went unanswered. He does not explain the contents of that letter or
allege that Sheriff Roeseler was aware of Brown’s condition and delayed treatment but failed to
act. Brown’s allegations do not state a claim against Sheriff Roeseler.
Because Brown does not know the names of the defendants he is suing, the Court will
keep Sheriff Roeseler as a defendant for the limited purpose of helping Brown identify the names
of the Doe defendants. See Donald v. Cook Cty. Sheriff’s Dep’t, 95 F.3d 548, 556 (7th Cir.
1996). Sheriff Roeseler does not have to respond to the amended complaint. After Sheriff
Roeseler’s attorney files an appearance in this case, Brown may serve discovery upon Sheriff
Roeseler (by mailing it to his attorney at the address in his notice of appearance) to get
information that will help him identify the names of the Doe defendants.
For example, Brown may serve interrogatories (written questions) under Fed. R. Civ. P.
33 or document requests under Fed. R. Civ. P. 34. Because Brown does not state a claim against
Sheriff Roeseler, Brown’s discovery requests must be limited to information or documents that
will help him learn the real names of the defendants he is suing. Brown may not ask Sheriff
Roeseler about any other topic, and Sheriff Roeseler is under no obligation to respond to requests
about any other topic.
After Brown learns the names of the people he alleges violated his constitutional rights,
he must file a motion to substitute their names for the John and Jane Doe placeholders. The
Court will dismiss Sheriff Roeseler as a defendant once Brown identifies the Doe defendants’
names. After the Doe defendants have an opportunity to respond to Brown’s amended
complaint, the Court will set a deadline for discovery. At that point, Brown may use discovery
to get the information he believes he needs to prove his claims.
Brown must identify the names of the Doe defendants within 45 days of Sheriff Roeseler’s
attorney appearing. If he does not, or does not explain to the Court why he is unable to do so, the
Court may dismiss his case based on his failure to diligently pursue it. Civil L. R. 41(c).
Motion for Recruitment of Counsel
Brown also requests that the Court recruit counsel to represent him in this action. (ECF
No. 17.) He requests counsel because he cannot afford to hire an attorney, his case involves
complex issues (including medical issues) requiring “significant research and investigation,” and
providing him counsel “would promote justice in that it would balance the scales and promote an
atmosphere for the expedient resolution of this matter.” (Id.) He attached letters from four
attorneys or firms who declined to represent him in this matter. (Id. at 3–6.)
In a civil case, the Court has the discretion to recruit counsel for individuals unable to
afford counsel. Navejar v. Iyola, 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). “[D]eciding whether to
recruit counsel ‘is a difficult decision: Almost everyone would benefit from having a lawyer, but
there are too many indigent litigants and too few lawyers willing and able to volunteer for these
cases.’” Henderson v. Ghosh, 755 F.3d 559, 564 (7th Cir. 2014) (quoting Olson v. Morgan, 750
F.3d 708, 711 (7th Cir. 2014)).
In exercising its discretion, the Court must consider two things: “(1) ‘has the indigent
plaintiff made a reasonable attempt to obtain counsel or been effectively precluded from doing
so,’ and (2) ‘given the difficulty of the case, does the plaintiff appear competent to litigate it
himself?’” Pennewell v. Parish, 923 F.3d 486, 490 (7th Cir. 2019) (quoting Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007)). To satisfy the first prong, the Court must determine that a
plaintiff made a good faith effort to hire counsel. Pickett v. Chicago Transit Auth., 930 F.3d 869,
871 (7th Cir. 2019). To do so, the plaintiff must show he contacted at least three lawyers and
provide the Court with (1) the lawyers’ names; (2) their addresses; (3) how and when the
plaintiff attempted to contact the lawyer; and (4) the lawyers’ responses.
In particular, the lawyers’ responses may have bearing on the Court’s decision to exercise
its discretion because they may shed light on whether the plaintiff’s attempts to hire counsel
were reasonable. Pickett, 930 F.3d at 871. In deciding whether to recruit counsel, the Court
should consider the reasons the lawyer declined representation, including whether the plaintiff
was unwilling (as opposed to unable) to pay a retainer; whether the lawyer lacked time or
capacity to take on new clients; or whether the subject matter of the case requires a lawyer who
specializes in a specific area of law. Id. The Court should also consider how well the plaintiff
articulated his case to the prospective lawyer. Id. Where a plaintiff “conveyed his situation well
and counsel deemed the claim feeble, then it would be inappropriate for a court to intervene” and
recruit counsel. Id. But, where a plaintiff is inarticulate, then a court “may have a useful role to
play in recruiting counsel.” Id.
When considering the second element, the Court “must examine the difficulty of
litigating specific claims and the plaintiff’s individual competence to litigate those claims
without counsel.” Pennewell, 923 F.3d at 490. The Court looks at “whether the difficulty of the
case, factually, legally, and practically, exceeds the litigant’s capacity as a layperson to
coherently litigate the case.” Id. This includes “all tasks that normally attend litigation,” such as
“evidence gathering, preparing and responding to court filings and motions, navigating
discovery, and putting on a trial.” Id. at 490–491. The Court “must consider the plaintiff’s
literacy, communication skills, education level, litigation experience, intellectual capacity,
psychological history, physical limitations and any other characteristics that may limit the
plaintiff’s ability to litigate the case.” Id. at 491. In situations where the plaintiff files his motion
in the early stages of the case, the Court may determine that it is “impossible to tell whether [the
plaintiff] could represent himself adequately.” Pickett, 930 F.3d at 871.
Brown satisfies the first Pruitt element, but he cannot satisfy the second. Brown’s
pleadings to date show he has a firm grasp of the events alleged and an understanding of his
constitutional claims against the defendants. As the case progresses, the legal and factual issues
may become too complex for him, his circumstances may change, or he may find himself unable
to obtain the information he believes he needs to prove his claims. Should that occur, it may be
appropriate to recruit counsel to represent Brown. At this early stage of the proceedings,
however, it is impossible to tell whether Brown requires the assistance of counsel to present his
case. The Court will deny Brown’s request for recruitment of counsel without prejudice.
Conclusion
The Court LIFTS the stay previously entered in this case. (ECF No. 14.)
The Court DENIES Brown’s request for recruitment of counsel. (ECF No. 17.)
The Court ORDERS that Sheboygan County Sheriff Cory Roeseler be SUBSTITUTED
on the docket for “Cory Roeseler” for the limited purpose of helping Brown identify the Doe
defendants.
The Court ORDERS the U.S. Marshals Service to serve a copy of the complaint and this
order on Sheboygan County Sheriff Cory Roeseler under Federal Rule of Civil Procedure 4.
Congress requires the U.S. Marshals Service to charge for making or attempting such service.
28 U.S.C. §1921(a). Although Congress requires the Court to order service by the U.S. Marshals
Service, it has not made any provision for either the Court or the U.S. Marshals Service to waive
these fees. The current fee for waiver-of-service packages is $8.00 per item mailed. The full fee
schedule is provided at 28 C.F.R. §§0.114(a)(2), (a)(3). The U.S. Marshals Service will give
Brown information on how to remit payment. The Court is not involved in collection of the fee.
The Court ORDERS that Sheriff Roeseler does not have to respond to the amended
complaint; however, he shall respond to discovery requests that Brown serves in an effort to
identify the Doe defendants’ names. Sheriff Roeseler does not have to respond to discovery
requests about any other topic.
The Court ORDERS that Brown must identify the Doe defendants’ names within 45
days of Sheriff Roeseler’s attorney filing an appearance in this case. If Brown does not identify
the Doe defendants’ names by the deadline, or advise the Court why he is unable to do so, the
Court may dismiss this case based on his failure to diligently prosecute it.
The Court will send a copy of this order to the officer in charge of the agency where
Brown is confined.
The Court ORDERS that the parties may not begin discovery until after the Court enters
a scheduling order setting deadlines for discovery and dispositive motions.
The Court ORDERS that plaintiffs who are inmates at Prisoner E-Filing Program
institutions1 must submit all correspondence and case filings to institution staff, who will scan
and e-mail documents to the Court. Plaintiffs who are inmates at all other prison facilities must
submit the original document for each filing to the Court to the following address:
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 JUDGE’S CHAMBERS. It will
only delay the processing of the matter.
The Court reminds Brown that if he fails to file documents or take other required actions
by the deadlines the Court sets, the Court may dismiss the case based on his failure to diligently
pursue it. The parties must notify the Clerk of Court of any change of address. Brown is
reminded that it is his responsibility to promptly notify the Court if he is released from custody
1 The Prisoner E-Filing Program is mandatory for all inmates of Green Bay Correctional Institution,
Waupun Correctional Institution, Dodge Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution.
or transferred to a different institution. Brown’s failure to keep the Court advised of his
whereabouts may result in the Court dismissing this case without further notice.
Dated at Milwaukee, Wisconsin this 18th day of December, 2020.
BY THE COURT:
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge