United States District Court, E.D. Wisconsin
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)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
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
PLAINTIFF’S AMENDED COMPLAINT
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.
Standard for Screening Complaints
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.
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)
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
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.
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)).
Facts Alleged in the Amended Complaint
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.
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.
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 ...