Walter Moffett v. Donald Strahota ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 30, 2019 *
Decided August 12, 2019
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18-3569
WALTER J.D. MOFFETT, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 15-C-644
DONALD STRAHOTA, et al., Lynn Adelman,
Defendants-Appellees. Judge.
ORDER
Walter Moffett, a Wisconsin inmate, alleged that prison officials at Waupun
Correctional Institution violated the Eighth Amendment by exposing him to dangerous
chemicals and ignoring medical complications that followed. See 42 U.S.C. § 1983. Five
times he asked the district court to recruit counsel. The court denied each request and
eventually entered summary judgment for the defendants. Because we cannot
determine whether Moffett’s fifth request for recruitment of counsel was appropriately
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 18-3569 Page 2
resolved, we order a limited remand to the district court, so that the court can consider
whether to reopen the case and recruit counsel for Moffett.
In his verified amended complaint, Moffett accused two corrections officers,
whom he identified as John Does, of spraying a “harmful chemical agent[]” onto his
bedding. Though he showed the supposedly contaminated linens to Sergeant Jeffrey
Meyer, Meyer refused to take them away. According to Moffett, the chemical agent
quickly caused him to become ill to the point of vomiting blood.
Over the course of the next four days, Moffett says he asked several prison
officials for medical treatment. The first to do anything was Officer Vinson Walker, who
assured Moffett that a sergeant knew he was vomiting blood. Moffett believed this
sergeant to be either Meyer or “Jane Doe #1.” Though this sergeant did nothing with
Walker’s report, Moffett alleged that Nurse Jane Doe #2 visited him the next day, June
23, 2013, and “merely came in front of [his] cell … stating to [him] ‘you are upright and
appear to be alright to me, put in a medical request’” before leaving without even a
cursory medical examination. Because Moffett’s requests were going unanswered, he
says he sent grievances regarding his lack of medical treatment to Brian Greff (the
Corrections Program Supervisor), Angelia Kroll (an Inmate Complaint Examiner), and
two deputy wardens, including Michael Meisner, to no avail. Finally, on June 24, a
different nurse saw how ill Moffett was and took him to a doctor. The doctor, in turn,
called an ambulance to take Moffett to the hospital, where he stayed for four days to be
treated for acute dehydration, esophagitis, and a hiatal hernia.
After the district court screened the complaint and denied summary judgment
on exhaustion grounds, the parties began discovery. Over the course of about nine
months, Moffett identified defendants to add to his case. Jane Doe #1, the sergeant to
whom Officer Walker spoke, was first identified as Thomas Nelson and then,
alternatively, as Joshua Overlien. The two John Does were officers Nathan Tank and
Brock Kubat. And finally, Moffett identified Jane Doe #2 as nurse Gail Waltz.
Starting with his first complaint and throughout the discovery process, Moffett
moved for recruitment of counsel five times. The first four motions were each denied
because Moffett appeared competent to litigate his claims, which were largely within
his personal knowledge and detailed in his complaint. Moffett filed his fifth motion
shortly after discovery had completed.
Around this same time, the defendants moved for summary judgment based on
their own declarations denying Moffett’s allegations. Only three defendants—Greff,
Kroll, and Meyer—remembered interacting with Moffett. The other defendants all
denied involvement in any of the alleged events. Officers Wolf and Kubat swore that
No. 18-3569 Page 3
they had never used chemical agents on an unoccupied cell, let alone Moffett’s. Deputy
Warden Meisner had worked at Columbia Correctional Institution, not Waupun, in
2013. Similarly, Sergeant Overlien worked in a guard tower, which apparently was not
associated with Moffett’s segregation unit, so that he doubted that he had any contact
with Moffett at all. And Nurse Waltz had not met with Moffett during the time he was
ill. Instead, Waltz pointed to medical records showing that a nurse named Bayer was
the one who had visited Moffett on June 23.
A few months after the defendants filed their motion, the district court denied
Moffett’s fifth motion for recruitment of counsel. Though Moffett complained of
difficulties accessing the law library at Columbia (his then place of incarceration) the
court continued to find that he was capable of adequately presenting the claims in his
personal knowledge. Moreover, the court emphasized that Moffett had “identified Doe
defendants and engaged in discovery.” Nevertheless, the court sought to accommodate
Moffett’s limitations by giving him six and a half months to respond to the motion for
summary judgment.
Moffett responded by requesting a continuance under Federal Rule of Civil
Procedure 56(d) because he was unable to contact Waupun witnesses from Columbia.
The district court denied the motion, gave Moffett another month to supplement his
response, but never received anything more from Moffett. Based on Moffett’s “failure to
supplement his response brief,” the court treated the summary judgment motion as
“virtually unopposed,” and entered judgment for the defendants.
On appeal Moffett laments the mistakes that led him to misidentify Deputy
Warden Meisner. He notes that he did not know any of the people who wronged him
personally, but instead had to rely on opposing counsel, discovery documents, and
inmates at Columbia to help him identify the defendants.
Moffett’s story raises the possibility that the district court overestimated his
ability to litigate his claims. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc).
Moffett’s misidentification of Meisner appears to follow directly from his transfer from
the prison where the events of his complaint occurred. See James v. Eli, 889 F.3d 320, 327
(7th Cir. 2018) (collecting cases detailing the hardships transfer can cause to prisoner
litigants). An inmate at Columbia told Moffett that Waupun’s deputy warden in 2013
was Meisner—but Meisner at that time was Columbia’s warden. More significantly, the
district court’s assessment that Moffett engaged in discovery and identified Doe
defendants is blemished by the possibility that Moffett, proceeding without counsel,
had misunderstood discovery and thus identified the wrong people as his Doe
defendants. See Santiago v. Walls, 599 F.3d 749, 763–64 (7th Cir. 2010).
No. 18-3569 Page 4
Here, the record appears to imply that Moffett misidentified at least Jane Doe #2.
Moffett identified this defendant as Nurse Waltz, but Waltz denies visiting Moffett
during the time he was sick, and the medical record supports her story. That record also
shows that on the same day that Moffett says Jane Doe #2 stood outside his cell, saw
that he was standing, and told him to file a medical request, Nurse Bayer visited his cell
twice. Bayer’s second visit was remarkably similar to Moffett’s allegations. Bayer wrote
that Moffett was standing, walking with a steady gait, and yelling that he had been
vomiting blood for three days because of mace. Through Bayer could not see into the
cell clearly, she saw that there was colored liquid in Moffett’s toilet—albeit not bright
red/blood colored. She told him to relax, drink water, and to submit a health services
request if he wanted to be seen. She did not examine him, she wrote, because he was too
agitated and would not calm down, despite being told there was no mace.
It would be premature for us to review the entry of summary judgment before
the district court can consider fully the possibility that Moffett misidentified
defendants. Perhaps the court did consider this possibility when ruling on the motion
and concluded that any mistake was not a result of Moffett’s incompetence, but rather
his own misguided tactical decisions. (Though not in the record when the judge denied
counsel, Moffett insisted in his response to defendants’ motion for summary judgment
that Bayer’s notes were fabricated, just as he has insisted other evidence was forged.) Or
perhaps the court may conclude, even if there were a misidentification, it would not
have recruited Moffett counsel because he was otherwise competent—the case was
largely within Moffett’s personal knowledge, and Moffett had successfully staved off
one motion for summary judgment before losing his case at the second. At this juncture,
we simply cannot know.
We therefore order a limited remand for the district court to consider whether it
is inclined to reconsider its denial of Moffett’s fifth motion for recruitment of counsel
and vacate its judgment to do so. We will retain jurisdiction over this appeal pending
the district court’s decision. See Richmond v. Chater, 94 F.3d 263, 268 (7th Cir. 1996).