United States District Court, E.D. Wisconsin
SCREENING COMPLAINT (DKT. NO. 1), DENYING AS MOOT THE
PLAINTIFF'S UNSIGNED MOTION TO PROCEED WITHOUT PREPAYING
THE FILING FEE (DKT. NO. 2), GRANTING THE PLAINTIFF'S
SIGNED MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE
(DKT. NO. 5), AND DENYING AS MOOT PLAINTIFF'S THIRD
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NO.
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
October 5, 201, plaintiff Stanley Tillman filed a complaint
against the U.S. Dept. of Health & Human Services; the
U.S. Government; Michael Weiner, M.D.; Sue Chem; and Outreach
Community Health Center. Dkt. No. 1. In the complaint, the
plaintiff listed his address as the Boonville Corrections
Center, 1216 E. Morgan Rd., “Boonvie, Mo. 65233.”
Id. at 1. (The court notes that there is a Boonville
Correctional Center at 1216 East Morgan Street in Boonville,
MO, with that zip code. On December 15, 2016, the court
received notice from the defendant that he had been released
from custody, and that he was living on Evans Avenue in St.
Louis, Missouri. Dkt. No. 9.)
complaint alleges that on April 24, 2013, the plaintiff went
to the Community Outreach Center on Capitol Drive in
Milwaukee to get his high blood pressure prescription
refilled. Id. at 4. While he was there, defendant
Dr. Michael Weiner (employed by Outreach) saw him, and wrote
the plaintiff a prescription for a different medication. When
the plaintiff went to the Outreach pharmacy to fill the
prescription Dr. Weiner had given him, however, the pharmacy
told him it no longer had that medication. The plaintiff
returned to Dr. Weiner's office, telling defendant Sue
Chem (the secretary) what had happened. Ms. Chem told the
plaintiff to wait, then showed him into Dr. Weiner, who
handed him a pill bottle which bore the name of the
prescription, but not the name of the person to whom the
medication had been prescribed. Id. Dr. Weiner
instructed the plaintiff to take one of these pills a day
until he was able to get the prescription Weiner had written
him filled. Dr. Weiner gave the plaintiff no other
instructions, and did not inform him of any side effects of
the medication in the bottle. Id.
plaintiff indicates that he took one pill a day, as Dr.
Weiner had instructed him, and about a week later, while
driving on the Illinois Turnpike through Rockford, Illinois,
he lost consciousness and ran off the highway into a tree.
Id. at 5. The plaintiff was seriously injured, his
car was totaled, and the hospital where he was taken told him
that the medication he'd been taking had caused his blood
pressure to drop so low that he'd blacked out.
Id. The hospital also told him that the medication
he'd been taking was a heart medication with serious side
effects, including fatigue and unconsciousness. Id.
The hospital told him that the dose Dr. Weiner (and, the
plaintiff alleges, Sue Chem) had given him was sixteen times
the recommended dosage. Id. The plaintiff alleges
that these actions violated his Eighth and Fourteenth
Amendment rights, as well as constituting malpractice and
negligence. He claims that defendant the Department of Health
and Human Services failed to properly supervise Dr. Weiner.
Id. at 7. He indicates that he has exhausted his
administrative remedies because he filed a complaint with the
HHS (which investigated and closed the complaint). He seeks
compensatory and punitive damages.
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 a complaint, or part of it, 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) (quoting Neitzke
v. Williams, 490 U.S. 319, 325 (1989)). The court may
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) (internal citations
state a cognizable 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). The 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
complaint must contain sufficient factual matter, that when
accepted as true, states a claim “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. 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)).
must hold pro se complaints, “however
inartfully pleaded, . . . to less stringent standards than
formal pleadings drafted by lawyers…”
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus,
“[a] document filed pro se is ‘to be
liberally construed.'” Id.
the plaintiff does not say so, the court believes that he
brings his constitutional claims (his Eighth Amendment claim
that he was he was subjected to cruel and unusual punishment,
and his Fourteenth Amendment due process claim) under 42
U.S.C. §1983, which prohibits a person acting under
color of state law to deprive another person of his civil
rights. To prevail on a claim under 42 U.S.C. §1983, a
plaintiff must demonstrate that (1) he was deprived of a
right secured by the Constitution or laws of the United
States, and (2) the ...