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Haskell v. Walls

United States District Court, E.D. Wisconsin

December 6, 2017




         Plaintiff, 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).

         The 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).

         To 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.

         In 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.

         To 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)).

         Plaintiff's allegations concern allegedly inadequate medical care he received from prison medical personnel.[1] 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. at 1.

         Plaintiff 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.

         Plaintiff's 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.

         However, 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).

         In 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).

         The 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).

         Most of 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 conclusion.

         Finally, 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 ...

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