United States District Court, E.D. Wisconsin
WALTER G. MATTHEWS, Plaintiff,
MARY SAUVEY, et al., Defendants.
William C. Griesbach, Chief Judge.
February 12, 2016, the plaintiff filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. On March 25, this Court granted
Plaintiff's motion for leave to file an amended
complaint. Plaintiff has since obtained counsel to represent
him in pretrial proceedings in this case. This case is now
before the court on Plaintiff's motion to amend the
amended complaint (ECF No. 36), Defendant Bruckner's
motion to dismiss Count 1 of Plaintiff's amended
complaint (ECF No. 38), and Plaintiff's unopposed motion
for leave to amend by dismissal his medical malpractice claim
(ECF No. 45).
December 2014 Plaintiff was incarcerated at Green Bay
Correctional Institution (GBCI). On December 20, 2016,
Plaintiff felt a “pop” in his lower right leg
while playing basketball. Afterward, Plaintiff began to
experience severe pain. Plaintiff was then taken to the
Health Services Unit where he was seen by Defendant Alsteen,
a registered nurse at GBCI. Plaintiff informed Alsteen of his
pain, inability to bear weight, swollen ankle, and difficulty
flexing his foot without pain. Alsteen provided Plaintiff
with crutches, ice, an extra pillow, a rest and lower bunk
recommendation, and a 200mg ibuprofen prescription. Though
Plaintiff had requested a referral to have an MRI test,
Alsteen denied the request. Alsteen also scheduled Plaintiff
for a nursing follow-up for three days later.
Bruckner, a nurse practitioner at GBCI, examined Plaintiff on
December 23, 2014. Plaintiff related to Bruckner that: he had
serious pain in his right leg; ibuprofen was an ineffective
treatment; his leg couldn't bear weight; he had
difficulty flexing his foot; and he struggled with using
crutches. Plaintiff demanded that Bruckner refer him to an
off-site doctor for an MRI test. Bruckner denied his request.
Bruckner diagnosed Plaintiff's injury as a probable
Achilles strain, advised him to continue with the orders
already in place, and discontinued his use of crutches.
Though Plaintiff requested the continued use of crutches or a
wheelchair he was denied both. Bruckner also advised
Plaintiff to avoid exertional activity until the pain
February 25, 2014, Plaintiff was seen at the HSU for an
unrelated health issue. At the appointment Plaintiff
complained that his Achilles injury had failed to recover.
Bruckner noted Plaintiff's symptoms and referred him to
an outside doctor for an MRI. On March 13, 2015, Plaintiff
was transported to St. Vincent Hospital where he was
diagnosed with a full thickness tear of the distal Achilles
tendon. On April 15, 2015, Plaintiff had surgery on the
tendon. Plaintiff had a second surgery to repair his Achilles
tendon on July 19, 2015. Plaintiff alleges that as a result
of the delay in his treatment he is permanently deformed and
will walk with a limp for the rest of his life.
Medical Malpractice Claim
11, 2016, Plaintiff filed a motion for leave to amend the
complaint by dismissal of the medical malpractice cause of
action against Defendant Bruckner. ECF No. 45. The motion
states that it is unopposed and a letter from Defendant
Bruckner's counsel is attached in support. Defendant is
likely correct that Plaintiff would be unable to pursue his
medical malpractice claims against Bruckner without first
complying with the terms of Wis.Stat. § 655.445. As
such, Plaintiff's motion for leave to amend by dismissal
pursuant to Federal Rule of Civil Procedure 15(a) will be
granted. See Taylor v. Brown, 787 F.3d 851, 858 (7th
Cir. 2015) (holding that voluntary dismissal of a single
cause of action from a complaint is governed by Fed.R.Civ.P.
15(a) not Fed.R.Civ.P. 41(a)).
Motion to Amend
23, 2016, Plaintiff filed a motion to amend/correct the
amended complaint pursuant to Fed.R.Civ.P. 15(a)(2) and Civil
L.R. 15. Plaintiff explains that he, when proceeding pro se,
neglected to attach the exhibits to which he referred in the
text of the complaint. Plaintiff now seeks to file the
amended motion with the exhibits attached. The proposed
second amended complaint is identical to the first amended
complaint in all other respects. The time for Defendants to
respond to this motion has elapsed and Defendants have failed
to respond. I find that justice requires that I grant
Plaintiff's motion for leave to amend. Fed.R.Civ.P.
15(a)(2). Defendants have not opposed the motion and would
not be prejudiced by this Court granting leave to file the
exhibits. Apparently, although Plaintiff failed to file his
exhibits with the Court along with his amended complaint, he
did serve those exhibits on Bruckner along with his original
complaint. Def.'s Br. in Supp. 2 n.1, ECF No. 39.
Furthermore, Plaintiff made the mistake when he was still
proceeding pro se in this matter. Therefore, Plaintiff's
motion for leave to amend (ECF No. 36) will be granted. Since
the allegations of the complaint are unchanged, defendants
need not file new answers. Their original answers will
for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure is proper “when the
allegations in a complaint, however true, could not raise a
claim of entitlement to relief.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 558 (2007). To state a
claim, a complaint must contain sufficient factual matter
“that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). In deciding a motion to
dismiss, the court construes the allegations in the complaint
in a light most favorable to the plaintiff, accepts all
well-pleaded facts as true, and draws all inferences in favor
of the non-moving party. Estate of Davis v. Wells Fargo
Bank, 633 F.3d 529, 533 (7th Cir. 2011). “It is
well settled that in deciding a Rule 12(b)(6) motion, a court
may consider ‘documents attached to a motion to dismiss
. . . if they are referred to in the plaintiff's
complaint and are central to his claim.'”
Brownmark Films, LLC v. Comedy Partners, 682 F.3d
687, 690 (7th Cir. 2012) (quoting Wright v. Assoc. Ins.
Cos. Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)).
Bruckner seeks an order dismissing Count I of Plaintiff's
Amended Complaint for failure to state a plausible claim of
deliberate indifference under the Eight Amendment. Def.'s
Mot. Dismiss 1, ECF No. 38. Bruckner argues that her actions
in the complaint, when viewed in a light most ...