United States District Court, E.D. Wisconsin
DECISION AND ORDER
William C. Griesbach, Chief Judge
Miller, proceeding pro se, filed an action under 42 U.S.C.
§ 1983 alleging that his civil rights were violated. The
judge originally assigned to this action screened the
complaint and allowed Grant to proceed on deliberate
indifference claims against Defendants Pach, O'Donnell,
Larson, Gunderson, Slinger, Vick, Boatwright, Manlove,
Waller, Litscher, Foster, Garcia, and four John Does. The
case was reassigned to me on March 3, 2017. Miller filed an
amended complaint on August 7, 2017, which will be screened
below in accordance with 28 U.S.C. § 1915A.
filed a motion to partially dismiss the amended complaint on
August 21, 2017. Specifically, Defendants move to dismiss
Cindy O'Donnell, John Litscher, Gwendlyn Vick, and Brian
Foster as parties to this action because they were not named
in the amended complaint. Defendants further assert that the
amended complaint fails to state a claim against Health
Services Manager McCreedy, Nurse Waltz, Dr. Manlove, BHS
Medical Director Holzmacher in his personal and official
capacity, and BHS Director Greer in his official capacity.
Because this screening order addresses those challenges
raised in Defendants' motion to dismiss, it will be
denied as moot. The court will now screen Miller's
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).
suffers from Sickle Cell Disease (SCD), a genetic condition
caused by irregularly-shaped blood cells. Am. Compl. ¶
1, ECF No. 34. The Wisconsin Department of Corrections DIA
Policy 500.30.55 relates to chronic disease services and is
intended to ensure that inmate patients are enrolled in a
chronic disease program to decrease the frequency and
severity of their symptoms. SCD is listed as an example of a
chronic condition and has its own designated treatment care
plan, separate from DAI Policy 500.30.55. Miller alleges that
when he began serving his prison sentence in 2015, he was not
placed on Waupun Correctional Institution's list of
patients with significant illnesses and was not initially
treated for SCD. Id. ¶ 10.
December 1, 2015, Miller submitted a Health Services Request
(HSR) to the Health Services Unit (HSU) complaining of bone
pain. Nurse York and Nurse Practitioner Garcia saw him on
December 8, 2015. At the appointment, Garcia entered orders
to develop a SCD treatment care plan and prescribed Prevnar
13 and Tylenol for Miller's pain. On January 20, 2016,
Garcia entered an order for an asthma care plan and requested
a status of the SCD care plan order. Miller followed up with
Garcia on January 28, 2016 and complained that he never
received his vitamins in segregation and that he experienced
multiple pains and priapism related to his SCD. As a result,
Garcia entered an order for “nursing staff to determine
if warm shower is necessary for priapism.” Id.
¶ 15. Nurse Waltz subsequently initialed the order for
the warm shower and entered the order into the WICS database.
She also completed a Medical Restriction Form permitting
Miller to shower up to six times a day to treat the priapism.
Miller alleges that he immediately began requesting showers,
but the officers ignored him. He also sent a request for
showers to Lieutenant Waller, the segregation unit
January 31, 2016, Miller asked Correctional Officer Pach to
take a shower because he was in severe pain. Rather than
permit Miller to take a shower, Pach took Miller's copy
of his medical restriction paperwork and never returned it.
Miller sent a second letter to Waller complaining about
Pach's conduct and asked Waller to instruct staff to
allow him to shower and return his copy of the medical
restriction. He also submitted an HSR complaining he was in
severe pain and that Pach took his copy of the medical
restriction. When Miller asked Pach to return his medical
restriction a few days later, Pach responded that he gave the
paperwork to Waller.
contends that by February 11, 2016, the medical restriction
completed by Waltz was not in his segregation unit file, his
copy of the restriction was lost, and the entry of the shower
restriction was removed from the WICS database. On February
12, 2016, Garcia cancelled the shower restriction and entered
an order for a warm compress. The following day, Nurse
Gunderson discontinued the instruction for showers and issued
an order allowing Miller to have an extra washcloth. Miller
alleges that Garcia and Gunderson failed to inform him what
he was to use the washcloth for or explain what a warm
compress was. After consulting with HSU Manager McCreedy, an
inmate complaint examiner recommended that Miller's
complaint be dismissed on February 23, 2016.
April 16, 2016, Miller filed an HSR complaining that he had
not received any warm compresses. The following day, Nurse
York indicated that his extra washcloths were for the
compresses. On May 6, 2016, Garcia ordered various lab
testings pursuant to Miller's SCD treatment plan. She
also prescribed Meloxicam for his pain and noted the Prevnar
13 medication had not arrived. On May 31, 2016, Nurse Vick
examined Miller in his cell regarding SCD pain. In August
2016, Miller went to HSU on an emergency pass for an episode
of vomiting and dizziness. On October 13, 2016, HSU staff
were called to Miller's cell after he had an SCD attack.
Miller alleges that despite his chronic disease, Vick
discontinued his Meloxicam, vitamin D, and Ensure supplement
medications on November 17, 2016.
of the appeal process of his grievance, Ana Boatwright
forwarded a redacted copy of the WICS database which omitted
the entries granting and discontinuing the shower restriction
to Joanne Bovee on May 2, 2016. On June 2, 2016, Boatwright
issued a recommendation for the plaintiff's appeal to be
dismissed, reasoning that Garcia's order never authorized
a shower restriction. Miller alleges ...