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Tillman v. U.S. Dept. of Health & Human Services

United States District Court, E.D. Wisconsin

December 27, 2016

STANLEY TILLMAN, Plaintiff,
v.
U.S. DEPT. OF HEALTH & HUMAN SERVICES, U.S. GOVERNMENT, MICHAEL WEINER, SUE CHEM, and OUTREACH COMMUNITY HEALTH CENTER, Defendants.

         ORDER 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. 9)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE

         On 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.)

         I. Facts

         The 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.

         The 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.

         II. Discussion

         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 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. §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) (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 omitted).

         To 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 555).

         The 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)).

         Courts 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.

         A. Jurisdiction

         While 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 ...


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