United States District Court, E.D. Wisconsin
THOMAS R. TISHER, Plaintiff,
DR. TANNAN, Defendant.
Stadtmueller U.S. District Judge
Thomas R. Tisher, who is incarcerated at Jackson Correctional
Institution, proceeds in this matter pro se. He
filed a complaint alleging that Defendant violated his
constitutional rights. (Docket #1). This matter comes before
the court on Plaintiff's petition to proceed without
prepayment of the filing fee (in forma pauperis).
(Docket #2). Plaintiff has been assessed and paid an initial
partial filing fee of $5.21. See 28 U.S.C. §
court shall screen complaints brought by prisoners seeking
relief against a governmental entity or an 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. Id. §
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). 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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 and 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)). However, a complaint that offers mere
“labels and conclusions” or a “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. (citing
Twombly, 550 U.S. at 556). 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).
considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first,
“identifying 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, second, “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. Section 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) (citing Kramer v. Vill. of N. Fond du Lac, 384
F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980). The court is obliged
to give the 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,
alleges that on August 28, 2017, while incarcerated at
Oshkosh Correctional Institution, he saw Defendant for pain
and elevated blood pressure. (Docket #1 at 2). Defendant
prescribed a blood pressure medication and Tylenol with
codeine. Id. Plaintiff says he is allergic to
morphine and that this is noted in his medical file.
Id. Defendant directed Plaintiff to take a codeine
pill while at the prison's medical unit, and was later
given another by a guard. Id. At 10:00 p.m. that
same day, Plaintiff complained that he could not breathe.
Id. at 2-3. A nurse saw him and noted his allergy.
Id. at 3. Plaintiff was taken to a local hospital
and later released, though it is not clear if he was kept
overnight. Id. Plaintiff says he “suffe[red]
from a[n] unprof[f]esional decision made by
[Defendant].” Id. Plaintiff asks for money
damages and an “[i]njunction ordering Jackson
Correctional Institution to provide [a]dequate [m]edical care
by a medical doctor that treats pain from [d]egenerative
[d]isc d[i]sease.” Id. at 4.
fails to state a claim for relief against Defendant. The
Eighth Amendment provides, inter alia, that
prisoners are entitled to a minimal level of healthcare while
in custody. Petties v. Carter, 836 F.3d 722, 727-28
(7th Cir. 2016). The Eighth Amendment is violated when the
prisoner shows that they “suffered from an objectively
serious medical condition, ” and that “the
individual defendant was deliberately indifferent to that
condition.” Id. at 728. The term
is a subjective standard. To demonstrate deliberate
indifference, a plaintiff must show that the defendant acted
with a sufficiently culpable state of mind, something akin to
recklessness. A prison official acts with a sufficiently
culpable state of mind when he knows of a substantial risk of
harm to an inmate and either acts or fails to act in
disregard of that risk. Deliberate indifference is more than
negligence and approaches intentional wrongdoing. In other
words, [d]eliberate indifference is not medical malpractice;
the Eighth Amendment does not codify common law torts.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir.
without deciding, that Plaintiff's pain and blood
pressure on August 28, 2017 could be considered a serious
medical condition, Plaintiff fails to show Defendant's
deliberate indifference to his medical needs. Plaintiff comes
nowhere close to alleging factual material which would infer
intentional or reckless conduct by Defendant. Taking his
allegations as true, Defendant negligently mis-prescribed the
codeine pill without noticing that Plaintiff was allergic to
it. There is no indication that Defendant was actually
aware that prescribing a codeine pill to Plaintiff would
cause an allergic reaction. At best, Plaintiff's
allegations state a claim for medical malpractice. As
instructed by Arnett, such a claim does not invoke
the protections of the Eighth Amendment, but is instead a
state law claim over which this federal court lacks
Court will, nevertheless, allow Plaintiff an opportunity to
amend his complaint. If he chooses to offer an amended
complaint, Plaintiff must do so no later than March
13, 2018. If he does not do so, this action will be
dismissed. Plaintiff should be aware that an amended
complaint supersedes the prior complaint and must be complete
in itself without reference to the original complaint.
See Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist.
No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). In
Duda, the Seventh Circuit emphasized that in such
instances, the “prior pleading is in effect withdrawn
as to all matters not restated in the amended
pleading[.]” Id. at 1057 (citation omitted);
see also Pintado v. Miami-Dade Housing Agency, 501
F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter,
‘[a]n amended pleading supersedes the former pleading;
the original pleading is abandoned by the amendment, and is
no longer a part of the pleader's averments against his
adversary.'”) (quoting Dresdner Bank AG,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463
F.3d 1210, 1215 (11th Cir. 2006)). If an amended complaint is
received, it will be screened pursuant to 28 U.S.C. §
IT IS ORDERED that Plaintiff's motion
for leave to proceed without prepayment of the filing fee
(in forma pauperis) ...