United States District Court, E.D. Wisconsin
JOSE A. ADAMES, Plaintiff,
ROBERT J. BIKOWSKI, JONATHAN S. PAWLYK, BRAD D. BADE, NATHAN E. HAYNES, JODI L. TRITT, and GWENDOLYN A. VICK, Defendants.
Stadtmueller, U.S. District Judge
an inmate at Waupun Correctional Institution
(“Waupun”), alleges that after he attempted
suicide in his cell on January 31, 2016, officers caused
severe injuries to his head, neck, back, shoulders, and
wrists while they strip-searched him and escorted him to
suicide observation. On November 9, 2016, the Court screened
Plaintiff's original complaint and allowed Plaintiff to
proceed on an excessive force claim against those officers.
(Docket #8). Plaintiff filed his first amended complaint on
December 19, 2016. (Docket #20). The Court screened that
complaint and found that Plaintiff could continue to proceed
on his excessive force claim. (Docket #21 at 3). However, the
Court did not allow him to proceed on a claim for deliberate
indifference to his serious medical needs arising from
allegedly inadequate and delayed medical care after the
excessive force incident. Id. at 4-5. The Court
advised that if Plaintiff wanted to attempt to state such a
claim, he would need to amend his complaint again.
February 17, 2017, Plaintiff filed a motion for leave to file
a second amended complaint. (Docket #24-1). His proposed
second amended complaint was attached to the motion. (Docket
#24). The Court will grant Plaintiff's motion for leave
to amend the complaint. See Fed. R. Civ. P. 15(a);
Foman v. Davis, 371 U.S. 178, 182 (1962). The Court
now turns to screening the second amended complaint, as it
must under the Prison Litigation Reform Act. 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.
Id. § 1915A(b). All of the standards cited in
the first screening order remain applicable here. (Docket #8
allegations in his second amended complaint are nearly
identical to the allegations in the first amended complaint.
As a result, the Court will assume familiarity with its prior
screening orders and address only Plaintiff's new
allegations. See (Docket #8 and #21). New to the
second amended complaint are more detailed allegations
regarding Plaintiff's allegedly inadequate and delayed
medical treatment after the January 31, 2016 excessive force
incident. Plaintiff asserts that he was never taken to a
hospital after the incident and that “it took me over
20 hours just to be seen by a nurse.” (Docket #24 at
5). He states that he went to sick call on February 1, 2016,
and was seen by a nurse, Gwendolyn A. Vick
(“Vick”). Id. She prescribed ibuprofen
for his pain and told Plaintiff that she had scheduled him to
see a “health care provider.” Id.
alleges that he did not immediately receive the prescribed
medicine. Id. He wrote to Waupun healthcare staff on
February 7, 2016, informing them that he had never received
the ibuprofen. Id. He received the medication
sometime that day. Id. at 1. He wrote to them again
on February 11 and 18, 2016, complaining that he was
experiencing severe pain and that the ibuprofen was
“not helping at all.” Id. at 5-6. On
February 20, 2016, a nurse responded to the February 18
request for care, stating that Plaintiff had an appointment
with a doctor “coming up.” Id. at 6.
Plaintiff submitted two additional healthcare requests, one
on February 22 and another on March 7, 2016, asking when the
doctor's appointment would occur and reiterating that he
was in extreme pain. Id. at 1, 6.
to Plaintiff, he did not see a doctor until sometime in March
2016. Id. at 6. During this period of delay,
Plaintiff claims he suffered incredible pain. Id. He
was not able to sleep because it caused too much pain to lay
down on his head, neck, or shoulders. Id. He also
asserts that since the incident, his hands fall asleep often
and he cannot squeeze anything very hard because it causes
pain. Id. Plaintiff attributes his delayed and
deficient healthcare to Vick and the Waupun healthcare
department generally, and seeks to join both in a deliberate
indifference claim brought pursuant to the Eighth Amendment.
See Id. at 1-2, 7.
noted in the Court's second screening order, to state a
claim of deliberate indifference to serious medical need,
Plaintiff must allege: (1) an objectively serious medical
condition; (2) that Defendants knew of the condition and were
deliberately indifferent in treating it; and (3) this
indifference caused Plaintiff some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). “With
regard to the deliberate indifference prong, ” the
Seventh Circuit instructs that “[t]he official must
have subjective knowledge of the risk to the inmate's
health, and the official also must disregard that
risk.” Id. Mere negligence will not suffice.
construing Plaintiff's allegations against Vick, the
Court finds that they suffice to state a deliberate
indifference claim based on the allegedly inadequate and
delayed medical care she provided for his injuries and pain.
The facts may ultimately show that Vick played only a minor
role in providing Plaintiff with care or that any error she
made was at worst negligence, but at this early stage, the
Court will permit the claim against her to proceed.
same is not true for Plaintiff's broader complaints
against the Waupun healthcare department. As the Court warned
Plaintiff in its second screening order, “‘public
employees are responsible for their own misdeeds but not for
anyone else's.'” (Docket #21 at 4) (quoting
Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.
2009)). Section 1983 “creates a cause of action based
on personal liability and predicated upon fault; thus
liability does not attach unless the individual defendant
caused or participated in a constitutional violation.”
Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996).
Moreover, there is no collective liability or respondeat
superior in Section 1983 actions. See Pacelli v.
deVito, 972 F.2d 871, 877 (7th Cir. 1992).
these principles, Plaintiff's vague allegations that
unnamed individuals in the Waupun healthcare department
collectively delayed his doctor's appointment or ignored
his requests for care after February 7, 2016 do not state a
claim for deliberate indifference against the healthcare
department as a whole. The healthcare department cannot be
liable for any individual's constitutional violations
simply because it employed that person. Absent an allegation
that the prison's healthcare provider had a policy or
custom that permitted the violations to occur, it cannot not
be liable under Section 1983. See City of Okla. City v.
Tuttle, 471 U.S. 808, 823 (1985). There is no such
allegation here, nor could any such inference be drawn from
these facts, and so the second amended complaint fails to
state a claim against the Waupun healthcare department.
the Court finds that, based on Plaintiff's second amended
complaint, he may proceed on the following claims: (1) a
claim of excessive force, in violation of the Eighth
Amendment, against Defendants Tritt, Haynes, Pawlyk, Bade,
and Bikowski, arising from the events of January 31, 2016;
and (2) a claim of deliberate indifference to Plaintiff's
serious medical needs, in violation of the Eighth Amendment,
against Defendant Vick for inadequate and delayed medical
care following the January 31, 2016 excessive force incident.
IT IS ORDERED that Plaintiff's motion for leave to file
his second amended complaint (Docket #24-1) be and the same
is hereby GRANTED;
FURTHER ORDERED that the Waupun Correctional Institution
healthcare department be and the same is hereby DISMISSED
from this action;
FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and
this Court, copies of Plaintiff's second amended
complaint (Docket #24) and this order will be electronically
sent to the ...