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Yerks v. Hofteizer

United States District Court, E.D. Wisconsin

March 15, 2017

JAMMIE L. YERKS, Plaintiff,
DR. HOFTIEZER and J. LABELLE, Defendants.



         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 paid an initial partial filing fee of $4.82. 28 U.S.C. § 1915(b)(4).

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 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).

         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); 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; 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)); 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. (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. 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 first “identif[y] 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 “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. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give 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’s complaint arises from allegedly inadequate medical care he received while incarcerated at Dodge Correctional Institution. (Docket #1 at 1). On September 18, 2014, Plaintiff was injured by a food cart while working in the prison cafeteria. Id. at 1. The cart hit him so hard that his right arm and shoulder “popped.” Id. He went to see the prison medical staff the next day. Id. He was not evaluated by a doctor; instead, a nurse told him to keep ice on his shoulder. Id. at 2. Plaintiff was seen by a Dr. Scott Hoftiezer (“Dr. Hoftiezer”) a few weeks later, and the doctor opined that the injury was “probably just a sprain.” Id. He ordered physical therapy. Id.

         Sometime later, Plaintiff saw Dr. Hoftiezer again and reported that the therapy was not helping his pain. Id. Dr. Hoftiezer thereafter ordered an x-ray of the shoulder and prescribed meloxicam for the pain. Id. The x-ray, taken in mid-December 2014, came back normal. Id.

         When Plaintiff saw Dr. Hoftiezer again on January 22, 2015, he claimed that he was still in pain and that he had not been attending physical therapy. Id. (It is unclear whether the therapy was not provided during this period or whether Plaintiff simply refused to go.) Plaintiff thereafter started attending physical therapy sessions but his pain persisted. Id. During one visit, the physical therapist heard Plaintiff’s shoulder “pop” and then asked why Plaintiff had not had an MRI of his shoulder. Id. He reported to her that Dr. Hoftiezer told him that an MRI was unnecessary. Id.

         Nearly a year later, on December 4, 2015, Plaintiff saw an orthopedic specialist, Dr. O’Brien, about his shoulder. Id. He suggested that Plaintiff work on strengthening his periscapular muscles, which are located around the shoulder blade, though the precise nature of the strengthening techniques is not described in the complaint. Id. Dr. O’Brien recommended a follow-up appointment in three months. Id.

         Plaintiff saw Dr. O’Brien again on March 4, 2015 and found that Plaintiff’s shoulder “was getting worse.” Id. He ordered an MRI of the right shoulder to evaluate Plaintiff’s rotator cuff. Id. The MRI, apparently taken on March 23, 2016 (over a year after Dr. O’Brien’s order), showed that Plaintiff had a “massive full thickness rotator cuff tear involving the entire supraspinatus and infraspinatus tendons with medical retraction to glenohumeral joint level.” Id. Dr. Hoftiezer reviewed these test results on April 14, 2016, and ordered a follow-up appointment with another orthopedic specialist, Dr. Grossman, for a treatment recommendation. Id.

         Dr. Grossman evaluated Plaintiff on May 19, 2016. Id. He diagnosed Plaintiff with a “chronic massive rotator cuff tear with retraction, atrophy and adhesive capsulitis.” Id. Dr. Grossman opined that no surgery could be done to correct the condition because too much time had elapsed. Id. Instead, Dr. Grossman recommended intensive inpatient physical therapy for 6–8 weeks. Id. Plaintiff saw Dr. Grossman again on July 6, 2016, but it seems that all he did was reiterate his recommendation for physical therapy. Id.

         Dr. Hoftiezer saw Plaintiff next on July 19, 2016 to discuss Dr. Grossman’s recommendations. Id. Dr. Hoftiezer presented Plaintiff with three options: (1) intensive physical therapy for a year; (2) manipulation under anesthesia and then a year of physical therapy to try to increase the benefit of the manipulation; or (3) continuation of home exercises and occasional analgesics to maintain the shoulder at its current functional capacity. Id. at 2–3. Plaintiff elected for 6–8 weeks of intensive physical therapy as recommended by Dr. Grossman. Id. at 3. Dr. Hoftiezer disagreed, however, and ordered Plaintiff to try the third option-home exercises-and then try (at some later, unspecified time) Dr. Grossman’s recommended ...

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