United States District Court, E.D. Wisconsin
JOSHUA E. COLE, Plaintiff,
DR. THOMAS GROSSMAN, JR., AGNESIAN HEALTHCARE, INC., WAUPUN MEMORIAL HOSPITAL, WISCONSIN DEPARTMENT OF CORRECTIONS, WAUPUN CORRECTIONAL INSTITUTION, and WISCONSIN DEPARTMENT OF JUSTICE, Defendants.
Stadtmueller U.S. District Judge
Joshua E. Cole (“Cole”), who is incarcerated at
Waupun Correctional Institution, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). Cole has paid the
full $400.00 filing fee.
of Cole's fee status, 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).
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)).
incarcerated at the Waupun Correctional Institution
(“WCI”). He alleges that on March 10, 2016, Dr.
Thomas Grossman (“Dr. Grossman”) of Waupun
Memorial Hospital performed fusion surgery on his right
thumb. Cole was not given any instructions for care after the
surgery. About a week after the surgery, Cole had “a
lot of pain that the pain pills could not touch.”
(Docket #1 at 3). Staff at WCI performed a culture sample and
x-ray, and determined that the hardware inside Cole's
thumb was broken and he had an infection that was eating away
at his bone tissue. Cole was returned to the hospital, where
Dr. Grossman took an x-ray and confirmed that the wire was
broken. Dr. Grossman told Cole that “this all went
horribly wrong and I'm not sure how to fix it.”
Id. at 4.
refused to go back to Dr. Grossman and he is now seeing a
specialist at the University of Wisconsin-Madison. The
specialist stated that the wrong hardware was used in
Cole's surgery. Cole alleges that he believes that Dr.
Grossman “does this to inmates because of personal
feelings that we are lessor than others.” Id.
April 2017, Cole still had an infection in his thumb which
causes the bone matter to lessen. He will need several more
surgeries because of Dr. Grossman's
“disregard.” Id. Cole will never have
good use of his thumb, will never be able to perform the jobs
he would normally perform outside of prison, and will be
considered disabled. He suffers from physical pain and mental
stress every day. For relief, he seeks monetary damages.
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.'” Arnett v. Webster, 658 F.3d
742, 750 (7th Cir. 2011) (quoting Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)).
Prison officials violate the Constitution if they are
deliberately indifferent to prisoners' serious medical
needs. Id. (citing Estelle, 429 U.S. at
103). A claim of deliberate indifference based on deficient
medical care must demonstrate two elements: (1) an
objectively serious medical condition; and (2) an
official's deliberate indifference to that condition.
Id. (citing Johnson v. Snyder, 444 F.3d
579, 584 (7th Cir. 2006)).
initial matter, because Cole alleges that Dr. Grossman
routinely performs medical procedures on inmates, the Court
presumes for screening purposes that he is a state actor
under 42 U.S.C. § 1983. See Rodriguez, 577 F.3d
824-25. Moreover, construing Cole's complaint liberally,
which the Court must at this stage, his allegations that Dr.
Grossman disregarded his medical needs and may have even
deliberately used the wrong hardware during his thumb
surgery, states a claim under the Eighth Amendment. See
Arnett, 658 F.3d at 751; Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011) (a prison official acts with a
sufficiently culpable state of mind when he knows of a
substantial risk of harm to an inmate and either acts or
fails to act in disregard of that risk).
addition to Dr. Grossman, Cole also sues several entities,
none of which may be held liable on the present allegations.
First, he joins Agnesian Healthcare, Inc., and Waupun
Memorial Hospital. These private entities may be liable under
Section 1983 only if the harm resulted from an official
policy, which Cole does not allege. See Glisson v.
Indiana Dep't of Corr., 849 F.3d 372, 379 (7th Cir.
2017). Therefore, they must be dismissed. Second, Cole sues
the Wisconsin Department of Corrections, the Wisconsin
Department of Justice, and WCI. These entities are not
“persons” as required under Section 1983. See
Wagoner v. Lemmon, 778 F.3d 586, 592 (7th Cir. 2015);
Will v. Michigan Dep't of State Police, 491 U.S.
58, 65 (1989); Odogba v. Wisconsin Dep't of
Justice, 22 F.Supp.3d 895, 907-08 (E.D. Wis. 2014).
Thus, they too are subject to dismissal.
reasons stated above, Cole may proceed on a claim of
deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment, against Defendant Dr.
IT IS ORDERED that Defendants Agnesian
Healthcare, Inc., Waupun Memorial Hospital, Wisconsin
Department of Corrections, Waupun Correctional Institution,
and Wisconsin Department of ...