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Palmore v. Blasius

United States District Court, E.D. Wisconsin

May 25, 2016

MARLOW PALMORE, Plaintiff,
v.
LORA BLASIUS, KRISTEN VASQUEZ, SARAH MIRESKI, JOHN TUTEN, ROBERTA SCHOOFS, DIANE LEVIN, DALE PREY, LINDSEY ROSE, BOB SCHREIBER, RYAN NELSON, ERIC KNOX, WAYNE GELLINGS, SHERINE MEEKS, KIMBERLEE DANCE, and NATASHA ADAMS, Defendants.

          ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (DKT. NO. 17), GRANTING DEFENDANTS’ MOTION TO COMPEL (DKT. NO. 19), AND GRANTING DEFENDANTS’ MOTION TO STAY SCHEDULING ORDER (DKT. NO. 19)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On August 13, 2015, the court entered a scheduling order, which provided an October 13, 2015 deadline for amended pleadings; a December 11, 2015 discovery deadline; and a January 11, 2016 deadline for filing motions to dismiss and motions for summary judgment. Dkt. No. 15. On October 14, 2015, the plaintiff filed a motion for leave to file an amended complaint, along with a proposed amended complaint and a number of exhibits. Dkt. No. 17. On November 30, 2015, the defendants filed a motion captioned as a motion to compel and a motion to stay the scheduling order pending disposition of the motion to compel. Dkt. No. 19. This order resolves these motions.

         I. PLAINTIFF’S AMENDED COMPLAINT

         A. Plaintiff’s Motion for Leave to File Amended Complaint In his original complaint, the plaintiff named several John/Jane Doe defendants. Since the filing of that complaint, the plaintiff has identified the names of those defendants, and he submitted the proposed amended complaint (Dkt. No. 17-1), which identifies those individuals. The court will grant the plaintiff’s motion to amend the complaint (Dkt. No. 17), and will screen the plaintiff’s amended complaint. The amended complaint (Dkt. No. 17) now is the operative complaint in this case.

         B. Standard for Screening Complaints

         The law requires the court 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 part or all of a complaint if the plaintiff 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).

         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 claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need 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 Atl. 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 follow the principles set forth in Twombly. First, they must “identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id. Second, if there are well-pleaded factual allegations, courts must “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 the defendants: 1) deprived of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

         C. Facts Alleged in the Amended Complaint

         In his proposed amended complaint, the plaintiff alleges that he was diagnosed with osteoarthritis at both Fox Lake Correctional Institution and Racine Correctional Institution (RCI). Dkt. No. 17-1 at 3. From August 14, 2009 until October 2015, he was prescribed various pain medications and creams. Id. Despite numerous requests, the plaintiff did not receive his pain medication from December 2014 until February 23, 2015. Id. The complaint investigator at the institution determined that the plaintiff had followed proper procedure for obtaining his medication and that health services had made several requests to Central Pharmacy for the medication. Id. The investigator also found that prison medical staff had mishandled the medication when it finally arrived, causing a further delay in the plaintiff getting his pain medication. Id. at 4. The plaintiff appealed the finding, because the investigator did not address the plaintiff’s issue regarding his physician refusing to see him or give him an alternate to his pain medication. Id. The plaintiff indicates that “it was confirmed” that he hadn’t had his pain medications for over sixty days, and “that his physician make an appointment to see him A.S.A.P.” Id. at 5. He doesn’t say who made this confirmation or recommendation. The plaintiff indicates despite numerous requests, he didn’t actually get “called in” until October 17, 2014; at that time, his pain medication was increased to double the amount of the original dose. Id.

         Defendant Kristen Vasquez is the Assistant Health Services Director at RCI. Id. at 5. The plaintiff notified Vasquez by interview request that he was not getting his medication and that it had been, at that time, weeks since he had gotten it. Id. Her response was to tell the plaintiff to send in another request and, if he hadn’t received the medication in a week, to send another request. Id. The plaintiff received his medication almost three weeks after he received Vasquez’s response. Id.

         Defendant Lora Blasius is the licensed practical nurse (LPN) assigned to the plaintiff. Id. Even after the plaintiff made several requests to see her, Blasius did not call the plaintiff up to the Health Services Unit until she was instructed to do so by the Office of the Secretary of the Wisconsin Department of Corrections. Id. The plaintiff also made Blasius aware that he was not ...


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