United States District Court, E.D. Wisconsin
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED
COMPLAINT ON OR BEFORE AUGUST 21, 2017
PAMELA PEPPER United States District Judge.
Chad Davis, a state prisoner, is representing himself. He
filed a complaint, alleging that the defendant was
deliberately indifferent to his serious medical need. Dkt.
No. 1. The plaintiff has paid the full filing fee.
when a plaintiff has paid the filing fee, the law requires
the court to screen 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 part of it, 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).
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). The court may 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable 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). It is not necessary
for the plaintiff to plead specific facts, and his statement
need only “give the defendant 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, ” however, 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). 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. (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).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. The plaintiff
must support legal conclusions by factual allegations.
Id. Second, 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) (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). The court is
obliged to give the 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)).
sworn complaint, the plaintiff details very clearly his
severe back pain, and his requests for treatment at Kettle
Moraine Correctional Institution, Waupun Correctional
Institution, and Redgranite Correctional Institution. Dkt.
No. 1 at 2-4. The plaintiff alleges that after arriving at
Redgranite, he did not receive treatment until his family
began calling and complaining about his lack of adequate
medical attention. Id. at 3. He asserts that his
lower back pain has progressed to his legs, and that his
current treatments are not working. Id. at 4. He
asked to see a foot specialist on numerous occasions.
Id. When the plaintiff finally saw a podiatrist, the
doctor prescribed foot injections and soft insoles for the
plaintiff's shoes. Id. The plaintiff received
the injections, but he was denied the insoles. Id.
He also missed his follow-up appointment with the podiatrist.
Id. Although the plaintiff received one MRI that
revealed “problems with his spine, ” he received
no follow-up and no further MRIs or tests to determine the
cause of his severe pain. Id.
plaintiff's claims implicate his Eighth Amendment right
to adequate medical care. See 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) (“The 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.'”). The only defendant the
plaintiff names in the complaint, however, is Lori Doheling,
the Health Services director at Redgranite. The
plaintiff's complaint does not describe any actions that
Doheling did or did not take, and does not refer to her other
than to identify and describe her as the defendant.
1983 limits liability to public employees who are personally
responsible for a constitutional violation. Burks v.
Raemisch, 555 F.3d 592, 595-96 (7th Cir. 2009). For
liability to attach, the individual defendant must have
caused or participated in a constitutional violation.
Hildebrandt v. Illinois Dept. of Natural Resources,
347 F.3d 1014, 1039 (7th Cir. 2003). With regard to
supervisors, the personal responsibility requirement is
satisfied if the constitutional deprivation occurs at the
supervisor's direction or with the supervisor's
knowledge and consent. Id. In other words, the
supervisor "must know about the conduct and facilitate
it, approve it, condone it, or turn a blind eye."
Id. (quoting Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995)).
plaintiff's complaint does not state claim of personal
involvement by Doheling. If the plaintiff wants to pursue his
claims regarding lack of treatment for his severe back pain,
he must file an amended complaint describing the treatment he
received or did not receive. He also must identify in that
amended complaint the names and/or job titles of the people
to whom he made requests for treatment. The plaintiff must
file his amended complaint on or before August 21, 2017. If
the court receives an amended complaint from the plaintiff,
the court will screen it under 28 U.S.C. § 1915A. If the
plaintiff does not file an amended complaint within this time
period, the court may dismiss this case.
amended complaint must bear the docket number assigned to
this case, and must be labeled “Amended
Complaint.” An amended complaint will supersede the
prior complaint, and must be complete in itself without
reference to the original complaint. See Duda v. Bd. of
Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d
1054, 1056-57 (7th Cir. 1998). In Duda, the
appellate court emphasized that in such instances, the
“prior pleading is in effect withdrawn as to all
matters not restated in the amended pleading[.]”
Id. at 1057 (citation omitted).
court ORDERS that if the plaintiff wishes to file an amended
complaint, he must do so in time for the court to ...