United States District Court, E.D. Wisconsin
REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN U.S. Magistrate Judge
Jamie Killian, who is representing himself, filed a complaint
under 42 U.S.C. § 1983, alleging that the defendants
were deliberately indifferent to his serious medical needs.
On April 26, 2017, the court screened Killian's complaint
and gave him the opportunity to file an amended complaint.
Killian availed himself of that opportunity on May 18, 2017.
This order screens Killian's amended complaint.
the Amended Complaint
court is required to screen complaints, including amended
complaints, brought by prisoners seeking relief against a
governmental entity or 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. 28 U.S.C. § 1915A(b).
state a cognizable claim under the federal notice pleading
system, a 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). 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) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980).
February 12, 2014, while housed at Oshkosh Correctional
Institution, Killian underwent major foot surgery on his left
foot: a bone was cut, a graph infused, six screws and a plate
were inserted, and another bone was ground down. Killian had
a second foot surgery in August 2014. The surgeries required
that Killian be transported from Oshkosh to the hospital for
follow-up appointments. These appointments involved about
four hours of travel time and up to ten hours of wait time
from the time of arrival to the end of the appointment.
different occasions, between February and September 2014,
Killian was transported to the hospital from Oshkosh. At the
time of each of these transports, Killian had a prescription
for narcotic pain medication (Vicodin or Oxicodone). Despite
these prescriptions and despite Killian's pleas for pain
relief, none of the transport officers (defendants Gonzales,
Miodzik, Monroe, Delvaux, Birchbauch) provided Killian with
his prescribed pain medication. All of the transport officers
informed Killian that Oshkosh had changed its policy and
would not allow correctional officers to administer
prescribed medications off-site. Killian asserts that he was
in extreme pain and suffered headaches and nausea as a result
of having to go up to fourteen hours without pain relief.
filed inmate complaints on February 24, July 18, and
September 29, 2014, about the transport officers' refusal
to provide him with prescribed pain relief. All three
complaints were affirmed by the inmate complaint examiner.
The decisions, which state that necessary medication should
be provided to inmates during off-site transports, were
forwarded to defendants McCreedy, Foster, and Barker, who are
medical administrators in the Health Services Unit.
Eighth Amendment safeguards the prisoner against a lack of
medical care that ‘may result in pain and suffering
which no one suggests would serve any penological
purpose.'” Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 828 (7th Cir. 2009) (quoting
Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To
state a claim based on deficient medical care, a plaintiff
must allege two elements: (1) an objectively serious medical
condition; and (2) an official's deliberate indifference
to that condition. Arnett v. Webster, 658 F.3d 742,
750 (7th Cir. 2011).
specifically, “[a]llegations of refusal to provide an
inmate with prescribed medication . . . can  state an
Eighth Amendment claim.” Id. at 753 (citing
Wynn v. Southward, 521 F.3d 588, 594 (7th Cir.
2001)). And while non-medical officials are entitled to rely
on or defer to the professional judgment of medical officials
on questions of a prisoner's medical care, non-medical
officials can be chargeable with deliberate indifference
where they have reason to believe or actually know that a
prisoner is being mistreated. Id. at 755 (citing
Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)).
alleges that McCreedy, Foster, and Barker instituted and/or
enforced a policy prohibiting transport officers from
administering prescribed medication to prisoners during
off-site transports and that they continued to enforce this
policy after being informed by an inmate examiner of
Killian's complaints. Based on these allegations, Killian
may proceed on an Eighth Amendment claim against McCreedy,
Foster, and Barker in both their official and individual
capacities. See Hill v. Shelander, 924 F.2d 1370,
1372 (7th Cir. 1991) (explaining that an official capacity
suit is appropriate when a defendant is executing or
implementing the official policy of the government entity
because such suits are a way of pleading an action against
the government entity of which the defendant is an agent).
also alleges that, even though defendants Gonzales, Miodzik,
Monroe, Delvaux, and Birchbauch knew that denying Killian his
prescribed narcotic pain medication pursuant to the
institution's policy resulted in him being in
excruciating pain, they did nothing to help him obtain
relief. Based on these allegations, Killian may proceed on an
Eighth Amendment claim against Gonzales, Miodzik, Monroe,
Delvaux, and Birchbauch in their individual capacities.
(Because the court is allowing Killian to proceed against