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Knight v. Grossman

United States District Court, E.D. Wisconsin

January 17, 2017

DEWAYNE KNIGHT, Plaintiff,
v.
DR. THOMAS W. GROSSMAN, Defendant.

          ORDER

          J.P. Stadtmueller U.S. District Judge.

         Plaintiff, 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).

         The 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).

         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); 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. 2011).

         To 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.

         In 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.

         To 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)).

         Plaintiff alleges that the relevant events occurred while he was a incarcerated at Waupun Correctional Institution (“WCI”). (Docket #1 at 5).[1]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.

         On 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.

         Dr. 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.

         On May 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 anesthesia. Id.

         While 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.

         Once 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.

         During 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 ...


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