United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
who is incarcerated at the Fox Lake Correctional Facility,
filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. (Docket
#1). As noted in prior orders, Magistrate Judge David E.
Jones has issued a report and recommendation to this Court,
recommending that Plaintiff's complaint be dismissed for
failure to state a claim upon which relief may be granted.
(Docket #23); see also (Docket #25). Plaintiff did
not object to the recommendation within the allotted time,
and so the Court adopted the recommendation and dismissed
this case. (Docket #25, #26).
then sought reconsideration of that order, arguing that he
had not received a copy of the recommendation therefore could
not object to it. (Docket #27). The Court afforded Plaintiff
until September 18, 2017, to file any objections he had to
Magistrate Jones' recommendation. (Docket #29). He was
later granted an extension of time to file objections until
October 13, 2017. (Docket #31). Several days after that
deadline expired, on October 17, 2017, he finally filed his
objections. (Docket #32).
objecting to a magistrate judge's report and
recommendation must offer specific objections. See
Fed. R. Civ. P. 72(b)(1). The Court must determine de novo
any part of the magistrate judge's disposition that has
been properly objected to. Id. 72(b)(3).
offers objections to the magistrate's report and
recommendation only as to Nurse Edge and his claim that she
was deliberately indifferent to his serious medical needs.
(Docket #32 at 1). He says that he alleged that Nurse Edge
displayed “gross negligence” in initially
misdiagnosing Plaintiff's knee as less serious than he
believes it was. Id. Plaintiff further claims that
Nurse Edge's negligence was confirmed later by the
findings of Nurse Practitioner Addison, who found that
Plaintiff's condition was more serious and needed review
by a doctor. Id. According to Plaintiff, because of
Nurse Edge's misdiagnosis, needed treatment was
unnecessarily delayed. Id. at 1-2.
objection is without merit. First, negligence or even gross
negligence does not rise to the level of a constitutional
violation. Estelle v. Gamble, 429 U.S. 97, 105-06
(1976); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011). Deliberate indifference is a higher standard. Second,
to the extent Plaintiff believes that Nurse Edge was
incompetent, it does not follow that she was deliberately
indifferent to her needs. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010); Estate of Cole by Pardue v.
Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996). The severity
of his condition was not so plain, or so mandating his
preferred course of treatment, as to be obvious to any
observer. See Steele v. Choi, 82 F.3d 175, 179 (7th
Cir. 1996). She made a considered judgment under the
circumstances, and Section 1983 is not an avenue for
prisoners to second-guess the treatment decisions of prison
medical staff. See Johnson v. Doughty, 433 F.3d
1001, 1013 (7th Cir. 2006). At worst, she indeed misdiagnosed
his knee injury, but even a misdiagnosis is permissible under
the Constitution. Walker v. Zunker, 30 F. App'x
625, 628 (7th Cir. 2002) (“Mere dissatisfaction with a
particular course of treatment, or even malpractice, does not
amount to deliberate indifference.”). Consequently,
Plaintiff's objection must be overruled and Magistrate
Jones' report and recommendation will be adopted.
the Court finds that Plaintiff's motion for
reconsideration of the Court's dismissal order, to the
extent it requests leave to amend the complaint, is without
merit. See (Docket #27 at 1). Nothing in
Plaintiff's filings suggests that he can cure the
deficiencies the Court has identified. Foman v.
Davis, 371 U.S. 178, 181-82 (1962) (denial of leave to
amend is appropriate when amendment would be futile).
Further, his present request for leave to amend is merely an
echo of his long since passed request for the same in
response to Magistrate Jones' original dismissal order.
See (Docket #11). Magistrate Jones refused to
reconsider his dismissal order on Plaintiff's prior
arguments, and this Court sees no reason to revisit that
decision. See (Docket #19). Indeed, the magistrate
found that even if Plaintiff was allowed to add certain
proposed new allegations- which were patently inconsistent
with his original allegations-he still could not state a
claim. Id. at 3. This Court is of like mind, and
Plaintiff's motion will, therefore, be denied, and this
case will be dismissed.
IT IS ORDERED that the Court's August
18, 2017 order and judgment dismissing this action (Docket
#25 and #26) be and the same are hereby
IS FURTHER ORDERD that Plaintiff's motion for
reconsideration of the Court's order and judgment
dismissing this action (Docket #27) be and the same is hereby
FURTHER IS ORDERED that Magistrate Judge David E.
Jones' Report and Recommendation (Docket #23) be and the
same is hereby ADOPTED;
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1) for failure to
state a claim;
IS FURTHER ORDERED that the Clerk of Court document
that this inmate has incurred a “strike” under 28
U.S.C. § 1915(g);
IS FURTHER ORDERED that a copy of this order be sent
to the officer in charge of the agency where the inmate is
confined; and THE COURT FURTHER CERTIFIES
that any appeal from this matter would not be taken in good
faith pursuant to 28 U.S.C. § ...