United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
who is incarcerated at the Wisconsin Secure Program Facility,
filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. (Docket
#1). This matter comes before the Court on Plaintiff's
motion to proceed in forma pauperis. (Docket #2).
Plaintiff has been assessed and has paid an initial partial
filing fee of $1.40. 28 U.S.C. § 1915(b)(4).
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. Id. §
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.
Id. § 1915A(b).
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); Gladney v. Pendelton Corr. Facility, 302
F.3d 773, 774 (7th Cir. 2002). 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; Gladney, 302 F.3d at 774. “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 (7th Cir. 2003) (citations omitted);
accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir.
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not
necessary for the plaintiff 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 Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)); see Christopher v. Buss, 384
F.3d 879, 881 (7th Cir. 2004). 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. “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. The complaint allegations “must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555;
Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the Court must then “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: (1) he was deprived of a right
secured by the Constitution or laws of the United States; and
(2) the deprivation was visited upon him by a person or
persons acting under color of state law. Buchanan-Moore
v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir.
2009); 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. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
alleges that the relevant events occurred while he was a
incarcerated at Waupun Correctional Institution
(“WCI”). (Docket #1 at 5).Defendant, Dr.
Thomas Grossman (“Dr. Grossman”), is a private
physician employed at Waupun Memorial Hospital (the
“Hospital”) as an orthopedic specialist.
Id. at 6. The Wisconsin Department of Corrections
(“DOC”) contracts with the Hospital to provide
medical services to its inmates. Id. It is on this
basis that Plaintiff alleges that Dr. Grossman acted
“as an agent of the Wisconsin Department of Corrections
(WDOC) and under the color of state law.” Id.
January 25, 2013, Plaintiff saw Dr. Hennessy (one of the
doctors in WCI's health unit), who made an initial
diagnosis of a torn anterior cruciate ligament
(“ACL”) in Plaintiff's left knee, and
referred Plaintiff to Dr. Grossman. Id. On February
14, 2013, WCI staff transported Plaintiff to the Hospital for
a consultation with Dr. Grossman. Id. at 6-7. Dr.
Grossman examined Plaintiff, and he and the Hospital's
nursing staff performed a series of tests. Id. at 7.
They did not conduct a magnetic resonance imaging
(“MRI”) test that day. Id.
Grossman diagnosed a torn ACL in Plaintiff's left knee
and recommended ACL reconstructive surgery to relieve
Plaintiff's pain. Id. Dr. Grossman described the
procedure as an elective operation and was
non-life-threatening. Id. Dr. Grossman offered two
types of procedures: (1) an “autograft”
procedure, which would use tissue from Plaintiff's right
knee to rebuild the left knee; and (2) an
“allograft” procedure, the nature of which
Plaintiff does not explain in the complaint. Id.
Plaintiff opted for and consented to the autograft procedure.
Id. The DOC approved this procedure and surgery was
scheduled for May 15, 2013. Id.
15, 2013, WCI staff again transported Plaintiff to the
Hospital. Id. At approximately 10:00 a.m., nurses
prepared him for the autograft surgery. Id. He was
then taken to the operation room, where Dr. Grossman met him
and again asked for Plaintiff's verbal and written
consent to the autograft procedure. Id. at 8.
Plaintiff gave consent and was then placed under general
Plaintiff was under anesthesia, Dr. Grossman performed
procedures other than the autograft procedure, including a
chondraplasty and abrasion arthroplasty. Id.
Plaintiff alleges that he did not consent to these
procedures. Id. He further asserts that these two
procedures were not performed in response to an imminent
life-threatening condition. Id. Instead, Dr.
Grossman undertook these procedures to treat some unspecified
condition that he diagnosed during surgery and of which
Plaintiff was previously unaware. Id.
Plaintiff awoke and learned that Dr. Grossman had not
performed the autograft and performed the other two
procedures instead, he demanded an explanation. Id.
He was allegedly not provided one and was taken back to WCI.
Id. According to Plaintiff, not until October 2013,
at a follow-up visit with Dr. Grossman, did the doctor
explain that when he opened Plaintiff's knee during
surgery, he found the ACL fully intact. Id. at 9. As
a result, Dr. Grossman concluded that there was no need to
open the right knee. Id. Additionally, Dr. Grossman
observed “significant patellofemoral joint degenerative
disease, ” which led him to perform the chondroplasty
and abrasion athroplasty. Id.
this October 2013 visit, Dr. Grossman further explained that
Plaintiff now needed a full left knee replacement due to
arthritis. Id. However, he stated that Plaintiff
could not receive it because he was too young and active and,
as a result, a replacement knee would wear out quickly and
the only remaining option would be amputation at the knee.
Id. Plaintiff was “devastated” by the
news, told Dr. Grossman that he “did not agree with
what he'd done to him, the ...