United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
December 12, 2016, the Court screened the plaintiff's
original complaint. (Docket #12). The Court found that the
plaintiff failed to state any viable claims for relief, but
permitted him to amend his complaint. Id. at 4-5.
The plaintiff submitted an amended complaint on December 15,
2016. (Docket #13).
noted in the first screening order, the Court is required 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 a complaint, or portion thereof, if the prisoner
has raised 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). All of the standards cited in the first screening
order remain applicable here. (Docket #12 at 1-3).
focus of the plaintiff's complaint remains the same: he
has been denied timely administration of his medication,
causing him physical and psychological injury, because of the
defendants' inadequate policies regarding reordering
inmate medications and using non-medical correctional staff
to distribute medications. (Docket #13 at 1, 4-5). In
addition to the explanation of deliberate indifference law
cited in first screening order, further precedent is
applicable here. (Docket #12 at 4). The Seventh Circuit
The doctrine of respondeat superior does not apply
to § 1983 actions; thus to be held individually liable,
a defendant must be “personally responsible for the
deprivation of a constitutional right.” . . . A
defendant “will be deemed to have sufficient personal
responsibility if he directed the conduct causing the
constitutional violation, or if it occurred with his
knowledge or consent.” . . . This definition recognizes
that the individual does not have to have participated
directly in the deprivation. . . . Thus, a supervisor may be
liable for “deliberate, reckless indifference” to
the misconduct of subordinates. See [Chavez v.
Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)]
(“The supervisors must know about the conduct and
facilitate it, approve it, condone it, or turn a blind eye
for fear of what they might see.”)[.]
Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001) (citations omitted).
first screening order, the Court specifically instructed the
plaintiff to allege “facts regarding each
defendants' knowledge of the medication issue, their
authority to remedy the issue, or any actions they took in
that regard.” (Docket #12 at 4). The plaintiff's
amended complaint does none of these. The plaintiff does not
allege that any of these defendants improperly distributed
his medication themselves. He also does not allege who any of
the defendants are (their positions at Waupun) or what
authority they had to change the medication policies.
Further, though the plaintiff briefly notes a few instances
of grievances he filed, he does not allege that any of the
defendants were involved in the medication issues underlying
those grievances, or knew about the conduct and condoned it.
(Docket #13 at 2). In fact, none of the defendants are
mentioned in any of the grievance documents attached to the
amended complaint. (Docket #13-1). In sum, the plaintiff
fails to allege that any of the defendants knew about any
particular instance of inadequate or improper medication
distribution to him, that they had authority to change the
relevant medication policies, and that their failure to do so
was criminally reckless. See Gayton v. McCoy, 593
F.3d 610, 620 (7th Cir. 2010). Their alleged general
awareness of problems with medication distribution cannot
support a claim that they were deliberately indifferent to
the plaintiff on any particular occasion.
closest the plaintiff comes to alleging knowledge is against
Gary Hamblin (“Hamblin”), namely that
“Hamblin's office is put on notice, when my medical
complaints come to his office for a decision.” (Docket
#13 at 4). It appears that the plaintiff seeks to impose
liability on Hamblin as a reviewer of one or more of his
grievances (again, Hamblin is not actually named in any of
the grievance documents provided). However, it is clear from
the grievances the plaintiff provided that Waupun's
medical and correctional staff were actively involved in
responding to them. See (Docket #13-1). Complaint
examiners are entitled to rely on the assurance that medical
and correctional staff are addressing the concerns involved
in a complaint absent specific knowledge that staff are
ignoring the plaintiff's problems. See Greeno v.
Daley, 414 F.3d 645, 655-57 (7th Cir. 2005); Burks
v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009). The
plaintiff does not say that Hamblin ignored his complaints,
which might create liability, see Burks, 555 F.3d at
595; in fact, Hamblin affirmed some of the grievances,
confirming that he was giving them attention. See George
v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)
(“Only persons who cause or participate in the
violations are responsible. . . . Ruling against a prisoner
on an administrative complaint does not cause or contribute
to the violation. A guard who stands and watches while
another guard beats a prisoner violates the Constitution; a
guard who rejects an administrative complaint about a
completed act of misconduct does not.”).
amended complaint, the plaintiff now attempts to state
additional causes of action beyond deliberate indifference to
his medical needs. (Docket #13 at 5-9). None have merit. The
plaintiff includes a heading titled “failure to
intervene, ” and cites a Seventh Circuit decision on
that subject, but never mentions that any defendant failed to
intervene as to any particular constitutional violations. His
deliberate indifference theory, however, is indistinguishable
from a failure to intervene theory, and thus this claim fails
for the same reasons stated above. The plaintiff does not
allege that any of the defendants knew of a particular
instance of improper medication distribution, had an
opportunity to remedy the problem, and refused to do so. The
plaintiff cannot proceed on a failure to intervene theory
without an underlying constitutional violation, and he has
not alleged any committed by these defendants. Abdullahi
v. City of Madison, 423 F.3d 763, 767-68 (7th Cir.
the plaintiff alleges “denial of prescription
medication” and a related “discrimination”
claim. (Docket #13 at 6). The “discrimination”
issue appears to be no more than another method of stating
that the plaintiff was denied his medications. Id.
These claims are no different than the deliberate
indifference and failure to intervene theories, and must also
plaintiff next alleges a negligence theory. Id.
Negligence claims are based in state law, not the
Constitution. Nevertheless, the Court could exercise
supplemental jurisdiction over the claim if the plaintiff had
any surviving federal claims (he does not) and had properly
alleged its essential elements. See 28 U.S.C. §
1367. In Wisconsin, “[t]here are four elements to any
negligence claim: (1) a duty of care on the part of the
defendant; (2) a breach of that duty; (3) a causal connection
between the breach and the plaintiff's injury; and (4)
actual loss or damage resulting from the injury.”
Brenner v. National Cas. Co., 872 N.W.2d 124, 129
(Wis. App. 2015). The plaintiff fails to even make a
conclusory allegation of these elements as to any of the
defendants. What few factual allegations exist do not
otherwise describe the origin of each defendant's duty,
how they breached it, or how that breach led to the injuries
the plaintiff suffered.
plaintiff's “personal involvement tort” is
not a recognized cause of action. Even if it were, he simply
asserts that each of the defendants are “some kind of
supervisors, but [they] failed to create a safe policy on how
to safely administer and reorder medications.”
(Docket #13 at 6). Again, this is precisely the same theory
advanced by the plaintiff under the Eighth Amendment
deliberate indifference standards, and it fails for the
reasons described above.
plaintiff also fails to state a valid equal protection claim.
He alleges a “class-of-one” style claim, which
requires that “he was ‘intentionally treated
differently from others similarly situated and that there is
no rational basis for the difference in
treatment.'” Swanson v. City of Chetek,
719 F.3d 780, 783-84 (7th Cir. 2013) (quoting Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Other
than to state that legal conclusion, the plaintiff does not
allege that he was treated differently than any other inmate
with regard to medication distribution. (Docket #13 at 7). In
fact, if his prior filings are any indication, the plaintiff
actually believes the medication issue is a widespread
problem affecting many inmates. See Porter et al. v.
Hamblin et al., No. 16-CV-553-JPS (Docket #1) (proposed
multi-plaintiff and class action complaint involving,
inter alia, the medication issue).
plaintiff's final claim apparently invokes the First
Amendment. Initially, the plaintiff offers various case
citations relevant to a retaliation claim. (Docket #13 at 7).
However, he makes no further allegations about retaliation of
any kind. Instead, he seems to allege that the defendants
violated the First and/or Eighth Amendments by failing to
ensure that correctional officers keep accurate records on
medication distribution. See Id. at 8-9. Even
assuming this is a cognizable claim (the plaintiff does not
cite any decisions from this Circuit supporting it), it fails
for the same reasons as his other claims. The plaintiff has
not alleged who the defendants ...