United States District Court, E.D. Wisconsin
ORDER AND RECOMMENDATION
WILLIAM E. DUFFIN U.S. Magistrate Judge.
accordance with this court's order of February 6, 2017,
plaintiff Gary Wayne Bahr filed an amended complaint on
February 24, 2017. Because Bahr is incarcerated and seeks to
sue a government entity or employee, the Prison Litigation
Reform Act (P LR A) requires that the court screen his
amended complaint before this action is permitted to proceed.
28 U.S.C. § 1915A.
PLRA requires courts to screen complaints brought by inmates
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, ” fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b).
state a claim under the federal notice pleading system, the
plaintiff must provide a “short and plain statement of
the claim showing that [he] is entitled to relief[.]”
Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific
facts but need only provide “fair notice of what the .
. . claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). A complaint that offers mere “labels and
conclusions” or a “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).
complaint must contain sufficient factual matter that, when
accepted as true, “state[s] a claim to relief 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. (citing Twombly, 550 U.S. at 556). The
complaint's allegations “must be enough to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555 (citation omitted).
courts follow the two-step analysis set forth in
Twombly to determine whether a complaint states a
claim. Iqbal, 556 U.S. at 679. First, the court
determines whether the plaintiff's legal conclusions are
supported by factual allegations. Id. Legal
conclusions not support by facts “are not entitled to
the assumption of truth.” Id. Second, the
court determines whether the well-pleaded factual allegations
“plausibly give rise to an entitlement to
relief.” Id. The court gives 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)).
to the allegations contained in his amended complaint,
Winnebago County, its sheriff, and its “H.S.U.”
have a policy barring jail inmates from receiving
prescription narcotics. Bahr apparently has been a frequent
detainee of the Winnebago County Jail and claims that when
incarcerated he is denied the narcotic medications he needs.
at this stage that the alleged policy results in the denial
of medication needed by an inmate, the court finds that this
allegation presents a plausible claim under 28 U.S.C. §
1983. It is not clear from the complaint whether Bahr was
incarcerated at the Winnebago County Jail as a pretrial
detainee or if he was serving a sentence. If Bahr was a
pretrial detainee, “it is the due process clause of the
Fourteenth Amendment rather than the Eighth Amendment's
proscription against cruel and unusual punishment” that
is applicable to his claim. Rice v. Corr. Med. Servs. (In
re Estate of Rice), 675 F.3d 650, 664 (7th Cir. 2012).
“However, courts still look to Eighth Amendment case
law in addressing the claims of pretrial detainees, given
that the protections of the Fourteenth Amendment's due
process clause are at least as broad as those that the Eighth
Amendment affords to convicted prisoners, ”
id., and therefore the distinction matters little at
this preliminary stage.
Eighth Amendment's prohibition against cruel and unusual
punishment proscribes deliberate indifference to the serious
medical needs of a prisoner. Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009).
“This indifference includes intentionally denying or
delaying access to medical care or intentionally interfering
with prescribed treatment.” Id. at 829.
construing Bahr's complaint, as the court must because he
is proceeding without the assistance of an attorney, the
court understands that Bahr is alleging that he is prescribed
narcotic pain medication. But when he is incarcerated the
jail, pursuant to its policy, refuses to permit him to
receive his prescribed medication, regardless of medical
need. The denial of a narcotic pain medication when it is
medically necessary could reasonably be expected to lead the
person to suffer undue pain from the lack of effective
treatment for the underlying pain, as well as additional
complications as a result of suddenly stopping a long-term
narcotic medication. See Arnett v. Webster, 658 F.3d
742, 753 (7th Cir. 2011); Grawcock v. Hodges, 2012
U.S. Dist. LEXIS 109890, 7-18 (N.D. Ind. Aug. 6, 2012)
(denying defense motion for summary judgment because a
reasonable finder of fact could conclude that a jail nurse
was deliberately indifferent when, relying upon a jail policy
regarding narcotics, she refused to provide an inmate with
prescribed narcotic pain reliever); but see Flynn v.
Garner, 2012 U.S. Dist. LEXIS 173063 (S.D. Ind. Dec. 6,
2012) (holding that substitution of non-narcotic for narcotic
medication was not deliberate indifference under the facts of
the case in part because “[j]ail officials have a
legitimate interest in restricting the use of narcotics by
concluded that Bahr has alleged a claim that is sufficient to
proceed, the court must next consider who the proper
defendants are on that claim. Bahr named as defendants
“Winnebago County, ” “Winnebago's Co.
H.S.U, ” “Winnebago Co. Sheriff, ” and
“all doctors with the H.S.U. in their individual and
official capacity, under color of state law.” (ECF No.
15 at 1.)
County is a suable entity and, because it is its policy that
Bahr challenges, is a proper defendant. Connick v.
Thompson, 563 U.S. 51, 60 (2011) (quoting Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)).
However, “Winnebago's Co. H.S.U” is not a
suable entity distinct from Winnebago County. Any claims
against what “Winnebago's Co. H.S.U” are
properly against Winnebago County. See Grow v. City of
Milwaukee, 84 F.Supp.2d 990, 996 (E.D. Wis. Feb. 25,
2000) (citing Buchanan v. City of Kenosha, 57
F.Supp.2d 675, 678 (E.D. Wis. 1999); Abraham v.
Piechowski, 13 F.Supp.2d 870, 879 (E.D. Wis. 1998)). The
same is true with respect to any claim against the
“Winnebago Co. Sheriff” if that claim is made
against the office rather than against the sheriff
it appears that Bahr intends to name the sheriff himself,
i.e., the individual person, as a defendant on the ground
that he is the person who implemented and enforced the
policy. At this preliminary stage the court will not say that
such a claim is insufficient. Therefore, the court will allow
this action to proceed against the sheriff individually.
See Winston v. Clarke, 2016 U.S. Dist. LEXIS 38226,
11 (E.D. Wis. Mar. 18, 2016) (permitting suit against sheriff
personally on the basis that sheriff's “jail policy
which only provides one pair of clean clothing and no shoes
causes ‘humiliation' and deprives him of the basic
necessities of civilized life”).
that leaves “all doctors with the H.S.U. in their
individual and official capacity, under color of state
law.” It is plausible that individual physicians who
allegedly were deliberately indifferent to Bahr's serious
medical needs might be proper defendants. Holloway v.
Del. County Sheriff, 700 F.3d 1063, 1074 (7th Cir.
2012). A physician who discontinues prior prescribed
treatment without exercising professional judgment may be
found to be deliberately indifferent. Id. (citing
Arnett v. Webster, 658 F.3d 742, 754 (7th Cir.
2011)). The Court of Appeals for the Seventh Circuit noted
its concern that a physician “attempt[ed] to justify
prescribing an admittedly inappropriate drug because the
appropriate drug was not a part of the [institution's]
formulary[.]”Gil v. Reed, 381 F.3d 649, 663
fn. 3 (7th Cir. ...