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Miller v. Pach

United States District Court, E.D. Wisconsin

December 14, 2017

NATHAN PACH, et al., Defendants.


          William C. Griesbach, Chief Judge

         Michael 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.

         Defendants 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 amended complaint.

         Screening of Complaint

         The 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).

         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). 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).

         Allegations of Complaint

         Miller 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.

         On 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 supervisor.

         On 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.

         Miller 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.

         On 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.

         As part 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 ...

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