United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
a Wisconsin state prisoner who is proceeding pro se,
filed a complaint alleging that Defendants violated the
Eighth Amendment by acting with deliberate indifference to
his serious medical needs. (Docket #1). On September 20,
2017, Magistrate Judge William E. Duffin screened the
complaint and determined that Plaintiff did not provide
enough facts to state a claim for relief. (Docket #8).
Specifically, Magistrate Duffin noted that critical
information was lacking regarding: (1) when Plaintiff's
injury occurred; (2) what Defendants Lori Doehling
(“Doehling”), Holly Gunderson
(“Gunderson”), and Dr. Thomas Grossman
(“Grossman”) did (or failed to do); and (3) what
Defendant Dr. Mary Sauvey (“Sauvey”) did to
violate his constitutional rights apart from denying his
request for surgery by an off-site doctor. Id. at
5-6. The magistrate directed Plaintiff to file an amended
complaint addressing these deficiencies. Id.
November 9, 2017, Plaintiff filed an amended complaint.
(Docket #11). This matter was thereafter reassigned to this
Court for screening the amended complaint. Because the
amended complaint largely reiterates the allegations from his
original complaint and provides no new, relevant details, the
Court will dismiss this case for failure to state a claim.
The Court will briefly explain its decision below.
amended complaint, as in the original, Plaintiff reports that
he heard a snap in his arm while curling weights on an
unidentified date. (Docket #11 at 3). He experienced severe
pain immediately and reported his injury to “health
services staff.” Id. at 3-4. The
“on-call nurse” (who is not a defendant in this
case) told Plaintiff that she did not want to disturb the
doctor on a holiday weekend. Id. at 4. Instead, she
gave him an ice bag and ibuprofen. Id.
5 and July 7 of some unidentified year, Sauvey examined
Plaintiff. Id. Plaintiff requested an off-site
doctor, an MRI, surgery, or more powerful pain medication,
but Sauvey denied the requests. Id. at 4. Between
July 2016 and October 2017, Plaintiff “continued to
complain” to Doehling, Gunderson, and Grossman about
wanting different treatment for the pain in his arm.
Id. Defendants still have not scheduled Plaintiff
for a surgery consultation. Id.
Eighth Amendment claim of deliberate indifference to a
serious medical need, the plaintiff must prove: (1) an
objectively serious medical condition; (2) that the defendant
knew of the condition and was deliberately indifferent in
treating it; and (3) this indifference caused the plaintiff
some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th
Cir. 2010). The deliberate indifference inquiry has two
components. “The official must have subjective
knowledge of the risk to the inmate's health, and the
official also must disregard that risk.” Id.
Even if an official is aware of the risk to the inmate's
health, “he is free from liability if he
‘responded reasonably to the risk, even if the harm
ultimately was not averted.'” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 843 (1994)).
cannot support a claim of deliberate indifference, nor is
medical malpractice a constitutional violation. Estelle
v. Gamble, 429 U.S. 97, 105-06 (1976); Roe v.
Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The question
is not whether the plaintiff believes some other course of
treatment would have been better. Snipes v. DeTella,
95 F.3d 586, 591 (7th Cir. 1996). Instead, he must prove that
the defendant's treatment decisions were “such a
substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person
responsible did not base the decision on such a
judgment.” Estate of Cole by Pardue v. Fromm,
94 F.3d 254, 261-62 (7th Cir. 1996); 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
medical need is 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.” Gutierrez v. Peters, 111 F.3d
1364, 1372 (7th Cir. 1997). “A medical condition need
not be life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not
treated.” Gayton, 593 F.3d at 620. However,
“refus[al] to dispense bromides for the sniffles or
minor aches and pains or a tiny scratch or a mild headache or
minor fatigue-the sorts of ailments for which many people who
are not in prison do not seek medical attention-does not by
its refusal violate the Constitution.” Cooper v.
Casey, 97 F.3d 914, 916 (7th Cir. 1996). Likewise, a
delay in treatment is only actionable if it aggravated his
condition or caused unnecessary pain. See Williams v.
Liefer, 491 F.3d 710, 715 (7th Cir. 2007).
Magistrate Duffin explained in the first screening order, the
Court has no information on how long Plaintiff had to wait to
receive medical care for his arm. Plaintiff injured himself
while exercising on an unidentified date. The “on-call
nurse” told Plaintiff that she did not want to disturb
the doctor on a holiday weekend and gave him ice and
Ibuprofen. Plaintiff had to wait until July 5 to see Dr.
Sauvey for an examination. Without more detail on how long
Plaintiff had to wait for medical care, Plaintiff cannot show
that any Defendant was deliberately indifferent to his needs.
Indeed, given that Plaintiff says he was seen on July 5, it
is entirely possible that Plaintiff injured himself over the
preceding Independence Day weekend. Thus, he would have only
waited one or two days to receive treatment, an amount of
time many people who are not in prison would have to wait to
see a doctor for aches and pains from an exercise-related
as Magistrate Duffin already noted, Plaintiff does not allege
facts against Dr. Sauvey apart from her denial of his
requests for different or additional treatment. Plaintiff
does not have a constitutional right to receive the treatment
of his choosing. See Forbes v. Edgar, 112 F.3d 262,
266-67 (7th Cir. 1997). Plaintiff suggests that Doehling,
Gunderson, and Grossman were aware of his medical condition
and refused to secure him surgery, but again, he has not
alleged facts indicating that this was anything more than his
want. Reynolds v. Barnes, 84 F. App'x 672, 674
(7th Cir. 2003) (“[T]he Constitution does not mandate
that a prisoner receive exactly the medical treatment he
desires.”) According to the amended complaint, the only
individual who did anything to deny him treatment was the
“on-call nurse, ” who is not a defendant in the
case. Therefore, Plaintiff again fails to state a claim upon
which relief can be granted. Because Plaintiff clearly failed
to address the deficiencies in his original complaint, the
Court finds that additional opportunity for amendment would
be futile, Foman v. Davis, 371 U.S. 178, 182 (1962),
and it will therefore dismiss the case with prejudice.
IT IS ORDERED that this action be and the
same is hereby DISMISSED with prejudice
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
COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C.
§ 1915(a)(3) unless the plaintiff ...