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Tisher v. Tannan

United States District Court, E.D. Wisconsin

February 20, 2018

THOMAS R. TISHER, Plaintiff,
DR. TANNAN, Defendant.


          J. P. Stadtmueller U.S. District Judge

         Plaintiff 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. § 1915(b)(1).

         The 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. § 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). 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) (citations omitted).

         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 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).

         In 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.

         To 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, 106 (1976)).

         Plaintiff 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.

         Plaintiff 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 “[d]eliberate indifference”

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. 2011).

         Assuming, 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 jurisdiction

         The 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. § 1915A.

         Accordingly, IT IS ORDERED that Plaintiff's motion for leave to proceed without prepayment of the filing fee (in forma pauperis) ...

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