United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge
Jamie Bowens, who is currently incarcerated at New Lisbon
Correctional Institution and was incarcerated at Waupun
Correctional Institution (WCI) at all times relevant to this
case, filed a pro se complaint under 42 U.S.C. § 1983,
alleging that his civil rights were violated. Plaintiff's
complaint also raises various state law claims. This matter
comes before the court on the plaintiff's petition for
leave to proceed without prepaying the full filing fee.
is required to pay the $350.00 statutory filing fee for this
action. See 28 U.S.C. § 1915(b)(1). If a
prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing fee of his complaint, as required under
28 U.S.C. § 1915(a)(2), and has been assessed and paid
an initial partial filing fee of $89.82. Plaintiff's
motion to proceed in forma pauperis will be granted.
court is required 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 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). 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); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
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). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The court accepts
the factual allegations as true and liberally construes them
in the plaintiff's favor. Turley v. Rednour, 729
F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).
alleges that, in mid-September 2013, he suffered a torn
Achilles tendon. ECF No. 1 at 1. Plaintiff alleges that
Defendant De Young, a nurse at WCI, initially treated him by
giving him ice, an ACE bandage, and crutches but, contrary to
the standard of care, failed to immobilize his leg.
Id. at 3-4. Plaintiff further alleges that De Young
failed to refer him to an orthopedic specialist and failed to
order a magnetic residence imaging (MRI). Id.
Plaintiff alleges that he continued to experience pain
through a visit with Defendant Messerole, another nurse at
WCI. Id. at 4. Messerole scheduled Plaintiff for an
MRI and placed him on work restriction but, like Nurse De
Young, failed to immobilize his leg or refer him to an
orthopedic specialist. Id. Plaintiff further alleges
that he underwent the MRI on October 2, 2013, but that
Defendants Messerole, Larson, Manlove, and De Young waited
eleven days to review the results of the MRI despite the
results being available on the day of the MRI. Id.
Furthermore, Plaintiff alleges that he was forced to wait a
month to see an orthopedic specialist, during which time
Plaintiff continued to experience “excruciating
pain.” Id. at 4-5. Finally, Plaintiff alleges
that, as a result of Messerole, Larson, Manlove, and De Young
failing to immobilize his leg and timely schedule him for an
appointment with an orthopedic specialist, his torn Achilles
became inoperable and the orthopedic specialist advised him
that he would suffer from permanent muscle loss, loss of
range of motion, stiffness, and pain. Id. at 6.
Plaintiff seeks $500, 000.00 in damages. Id. at 10.
Eighth Amendment prohibits “cruel and unusual
punishments” and imposes a duty on prison officials to
take reasonable measures to ensure that the inmate receives
adequate medical care. Farmer v. Brennan, 511 U.S.
823, 832 (1994). Prison officials violate the Constitution if
they are deliberately indifferent to a prisoner's serious
medical needs. Id. (citing Estelle v.
Gamble, 429 U.S. 97, 103 (1976)). To state a claim based
on deficient medical care, a plaintiff must demonstrate that
he had an objectively serious medical condition and that the
defendants were subjectively aware of and consciously
disregarded that condition. Id. at 837. A medical
need is considered sufficiently serious if the inmate's
condition “has been diagnosed by a physician as
mandating treatment or . . . is so obvious that even a lay
person would perceive the need for a doctor's
attention.” Roe v. Elyea, 631 F.3d 843, 857
(7th Cir. 2011) (citations omitted). A plaintiff may sustain
an Eighth Amendment claim for deliberate indifference based
on “a few days' delay in addressing a severely
painful but readily treatable condition.” Smith v.
Knox Cty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012);
see also Perez v. Fenoglio, 792 F.3d 768, 777 (7th
Cir. 2015) (“Deliberate indifference may occur where a
prison official . . . delays a prisoner's treatment for
non-medical reasons, thereby exacerbating his pain and
suffering.”). “The ‘receipt of some medical
care does not automatically defeat a claim of deliberate
indifference.'” Perez, 792 F.3d at 777
(quoting Edwards v. Snyder, 478 F.3d 827, 831 (7th
Cir. 2007)). Allegations of mere negligence on the part of a
medical professional, however, will not provide a basis for a
claim for deliberate indifference. Farmer, 511 U.S.
stage in the proceedings, Bowens has stated an Eighth
Amendment claim against Defendants Messerole, Larson,
Manlove, and De Young. Based on the facts above, I cannot say
that Bowens' medical condition did not constitute a
serious medical need or that prison officials did not
demonstrate deliberate indifference to his condition in their
failure to review his MRI results promptly and their failure
to refer him to an orthopedic specialist at a point in time
when his torn Achilles was operable.
recover under § 1983 a plaintiff must establish that a
defendant was personally responsible for the deprivation of a
constitutional right. Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995). An official satisfies the personal
responsibility requirement of § 1983 if the conduct
causing the deprivation occurs at his direction or with his
knowledge and consent. Id. At this stage of the
litigation, Bowens may proceed with his § 1983 claim
against Messerole, Larson, Manlove, and De Young based on
Bowens' allegation that they knew of his Achille's
heel injury and failed to provide adequate treatment.
may also proceed with his § 1983 claim against Defendant
Belinda Schrubbe personally. Bowens alleged that Schrubbe was
the HSU manager and was responsible for supervising all of
the medical and health care staff within HSU. Bowens alleged
that Schrubbe was made aware of Bowens' torn Achilles.
Reading Bowens' complaint liberally, as I must do at this
stage, I cannot say that Schrubbe was not deliberately
indifferent in her knowledge of Bowens' injury and her
subsequent inaction. However, Bowens may not proceed against
Schrubbe for her staff's alleged deliberate indifference
under a supervisory liability theory. Supervisory liability
cannot serve as a basis for advancing a claim under 42 U.S.C.
§ 1983 for a constitutional violation. Perez,
792 F.3d at 781. Therefore, Bowens may only proceed against
Schrubbe on the individual level, not under a theory of
extent that Bowens is attempting to raise state law claims by
alleging a violation of the Wisconsin state constitution,
those claims are barred. The state constitution does not
authorize suits for money damages for violations of the
constitution except in the context of a takings claim.
W.H. Pugh Coal Co. v. State, 460 N.W.2d 787, 792-93
(Wis. 1990); see also Flakes v. Wall, No.
15-cv-245-slc, 2016 U.S. Dist. LEXIS 185991, at *10 (W.D.
Wis. Mar. 9, 2016); Jackson v. Gerl, No.
07-cv-656-bbc, 2008 WL 753919, at *6-7 (W.D. Wis. Mar. 19,
Bowens' medical malpractice state law claims appear to be
time-barred based off of Bowens' complaint, it is too
early in the litigation process to dismiss the claims.
Wisconsin Statute § 893.55(1m) provides a statute of
limitations for medical malpractice claims of three years
from the date of the injury or one year from the date the
injury was discovered, whichever is later. Bowens' injury
occurred on September 19, 2013. On October 22, 2013, Bowens
saw the orthopedic specialist, who informed him that it was
too late to do the surgery. Therefore, Bowens had until
October 22, 2016, to file a medical malpractice claim. He did
not file his complaint until August 14, 2017, almost ten
months past that deadline. However, because the statute of
limitations is an affirmative defense, the Seventh Circuit
has cautioned against applying it this early in litigation.
Lewis v. Stenz, 637 F. App'x 943, 944 (7th Cir.
2016) (“Only when the outcome is uncontestable should
the district court apply a statute of limitations to dismiss
a lawsuit before the defendants have been served with
process.”) (citations omitted). At this point, I cannot
say that Bowens' medical malpractice claims are
uncontestably barred by the statute of limitations.
plead a medical malpractice claim, Bowens need only plead
that a negligent act or omission caused an injury. Paul
v. Skemp, 625 N.W.2d 860, 865 (Wis. 2001). At this stage
in litigation, Bowens has sufficiently pled a medical
malpractice claim against Defendants Messerole, Larson,
Manlove, and De Young for failing to immobilize his leg and
for failing to timely review his MRI and refer him to an
orthopedic specialist. Additionally, I cannot say that Bowens
has failed to sufficiently plead a medical malpractice claim
against Defendant Schrubbe for failing to act when she knew
of his injury and oversaw the HSU.
Bowens may proceed on the following claims: his § 1983
claim for deliberate indifference and his medical ...