United States District Court, E.D. Wisconsin
JAMMIE L. YERKS, Plaintiff,
DR. HOFTIEZER and J. LABELLE, Defendants.
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 paid an initial partial
filing fee of $4.82. 28 U.S.C. § 1915(b)(4).
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. §
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).
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.
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.
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)).
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.
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.
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.
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.
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.
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.
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