United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE.
who is incarcerated at Oshkosh Correctional Institution,
filed a pro se complaint under 42 U.S.C. §
1983, alleging that his civil rights were violated. (Docket
#1). This matter comes before the Court on Plaintiff's
motion to proceed in forma pauperis. (Docket #2).
Plaintiff has been assessed and paid an initial partial
filing fee of $5.46. 28 U.S.C. § 1915(b)(4).
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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.
Id. § 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);
Gladney v. Pendelton Corr. Facility, 302 F.3d 773,
774 (7th Cir. 2002). The Court may, therefore, 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;
Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
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). It is not
necessary for the plaintiff to plead specific facts; his
statement need only “‘give the defendant fair
notice of what the. . .claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] pleadings that, because they are no
more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. 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); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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)).
allegations concern allegedly inadequate medical care he
received from prison medical personnel. The allegations
are hard to follow, however, as Plaintiff does not clearly
set out a timeline of relevant events or identify precisely
what each Defendant did or did not do. As best the Court can
discern, Plaintiff suffers from bipolar disorder and type-2
diabetes, among other conditions. (Docket #1 at 2). In 2012,
he was prescribed lithium by a prison doctor, either
Defendant Dr. Strelnick (“Strelnick”) or Dr.
Patrick Murphy (“Murphy”), both of whom provided
him care. See Id. at 1-2. However, the prescribing
doctor mistakenly prescribed too high a dosage, leading to
lithium toxicity, acute renal failure, and an eight-day stay
in a hospital intensive care unit in May 2015. Id.
appears to claim that these two doctors should have
discovered the overdosage before it resulted in toxicity.
Id. at 1-2. He bases this belief on his presentation
of an inability to balance while walking or standing, slurred
speech, and thickened, scaly skin, which presumably are all
symptoms of lithium poisoning. Id. Further,
Plaintiff claims that during a review of his medical file in
2014 in connection with adding a new medication, Lisinopril,
to treat his diabetes, the reviewing doctor-again, either
Strelnick or Murphy-should have seen and corrected the
lithium dosage. Id. Apparently Lisinopril can have
deleterious interactions with lithium. See id.
complaint crosses the very low threshold set at screening as
to Murphy and Strelnick. To show that these doctors were
deliberately indifferent to his serious medical needs, in
violation of the Eighth Amendment, Plaintiff must show: (1)
an objectively serious medical condition; (2) that Defendants
knew of the condition and were deliberately indifferent in
treating it; and (3) this indifference caused him 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.
Negligence 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).
While the prison physicians' error-if it was one- might
ultimately be explained as mere inadvertence, at the present
stage the Court, generously construing Plaintiff's
allegations, find that he states a claim against them.
Plaintiff may not proceed on claims against the other
Defendants-Secretary Edward Walls, Warden Judy Smith, and
Danielle Foster. In the complaint, he makes no mention
whatsoever of these individuals. These officials cannot be
liable for the actions of others simply because they may have
acted in a supervisory capacity. Rather, they are responsible
only for their own conduct. Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995). Since Plaintiff does not
allege that any of these Defendants participated in his
medical care or knew of Strelnick and Murphy's purported
misconduct, no claim can be stated against them. Id.
(to be liable, a supervisory defendant “must know about
the conduct and facilitate it, approve it, condone it, or
turn a blind eye”). Thus, for the reasons stated above,
Plaintiff shall be permitted to proceed on a claim of
deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment, against Defendants
Strelnick and Murphy. 28 U.S.C. § 1915A(b).
closing, the Court makes an observation about a potential
obstacle in this case: exhaustion of prison administrative
remedies. The Prison Litigation Reform Act establishes that,
prior to filing a lawsuit, a prisoner must exhaust
“such administrative remedies as are
available[.]” 42 U.S.C. § 1997e(a). To do so, the
prisoner must “file complaints and appeals in the
place, and at the time, the prison's administrative rules
require, ” and he must do so precisely in accordance
with those rules; substantial compliance does not satisfy the
PLRA. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th
Cir. 2002). Exhaustion is a precondition to suit, and so a
lawsuit must be dismissed even if the prisoner exhausts his
administrative remedies during its pendency. Ford v.
Johnson, 362 F.3d 395, 398 (7th Cir. 2004).
Wisconsin Department of Corrections maintains an Inmate
Complaint Review System (“ICRS”) to provide a
forum for administrative complaints. Wis. Admin. Code §
DOC 310.04. There are two steps inmates must take to exhaust
their administrative remedies under the ICRS. First, an
inmate must file a complaint with the Institution Complaint
Examiner (“ICE”) within fourteen days of the
events giving rise to the complaint. Id.
§§ DOC 310.07(1), DOC 310.09(6). The ICE may reject
a complaint or, before accepting it, can direct the inmate to
“attempt to resolve the issue.” See Id.
§§ DOC 310.08, DOC 310.09(4), DOC 310.11(5). If the
complaint is rejected, the inmate may appeal the rejection.
Id. § DOC 310.11(6).
Plaintiff's attachments to his complaint consisted of
decisions on his inmate complaints and subsequent appeals.
While the Court could not consider them when screening his
allegations, it did review these documents. They appear to
show that Plaintiff did not timely file a grievance regarding
Strelnick's or Murphy's medical care. If this is so,
then his complaint could be subject to an early motion for
summary judgment on a failure to exhaust administrative
remedies. The Court leaves it to Defendants to seek judgment
on that ground if a review of the evidence supports such a
the Court will address Plaintiff's other pending motion,
in which he seeks the appointment of counsel. (Docket #4).
Plaintiff claims he needs counsel appointed for him because
(1) he has bipolar disorder, (2) he is indigent and lacks the
resources to litigate this case, (3) his imprisonment will
hinder his ability to prosecute this case, (4) his case is
complex, and ...