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Daniels v. Foster

United States District Court, E.D. Wisconsin

April 3, 2018

REMO HARRISON DANIELS, Plaintiff,
v.
BRIAN FOSTER, SARAH COOPER, TONY MELI, NACHY WHITE, CHRYSTAL MARCHANT, CARLYN M. VOIGT, ANNE YORK, CO WOOD, CO DERTER CO CLERK DR. SYERD ANDREW KESSLER DR. TORRIA M. VAN BUREN and DR. STEVEN J. SCHMIDT, Defendants.

          SCREENING ORDER

          NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE.

         Remo Daniels, a Wisconsin state prisoner who is representing himself, filed a civil rights complaint under 42 U.S.C. § 1983. On September 11, 2017, I issued a report and recommendation regarding the screening of his complaint. (Docket # 31.) The case was then transferred to the Honorable Pamela Pepper to rule on the report and recommendation. In the interim, the Wisconsin Department of Justice and this court have entered into a Memorandum of Understanding that gives limited consent to magistrate judges to screen prisoner complaints. I therefore have jurisdiction for purposes of screening the complaint. The case has been transferred back to me, and I will withdraw the report and recommendation and issue a screening order. For the reasons stated below, Daniels may proceed against all defendants on his Eighth Amendment claims; however, I will not permit Daniels to proceed against Dr. Syerd for retaliation. Additionally, I will deny Daniels' motion to prevent spoliation, his motion to appoint counsel, his motion for emergency relief, and his motion for a protective order. I will order the defendants to respond to Daniels' motion for a preliminary injunction and temporary restraining order.

         Screening of Plaintiff's Amended Complaint

         Federal law requires that I 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). I 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).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 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 proceed 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 defendant was acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). I will give a pro se plaintiff's 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)).

         Allegations in the Complaint

         On January 12, 2017, defendant Dr. Syerd prescribed “crushed” medication to Daniels because of his history with overdosing. (Compl. at 2, Docket # 1.) On December 5, 2016 and January 15, 2017, Daniels was placed in the Waupun Hospital emergency room after an overdose on medication. (Id.) On January 19, 2017, as defendant Anne York was administering medication, she informed Daniels that he had been taken off crushed medication and been given “whole” pills. (Id.) Daniels alleges that Dr. Syerd put him on whole pills again in retaliation for his overdose on January 15, 2017. (Id.) As a result of receiving whole pills, Daniels was able to “save up more pills” and then overdosed on acetaminophen on February 7, 2017 in the presence of defendant Dr. Torria Van Buren. (Id. at 3.) Daniels alleges that the other defendants told Dr. Van Buren that they knew he had a large amount of pills, but did not care. (Id.)

         Further, Daniels wrote to the unit managers defendants Nachy White and Chrystal Marchant informing them that the security officers were not properly handcuffing him to the door for his medication restriction because “they didn't care” if he overdosed. (Id.) Daniels asserts that he was allowed to store a supply of pills. (Id.) On February 17, 2017, Daniels was caught with the pills he planned to overdose with, but it is not clear from the complaint what happened after. (Id. at 4.) On March 11, 2017, Daniels informed an officer that he planned to overdose using the pills he saved. (Id.) Around 12:00 p.m. that day, an inmate told Sgt. Voigt that Daniels planned on overdosing. (Id.) Around 12:35 p.m., Daniels stopped defendant Officer Clerk and told him that his stomach was hurting because he ingested a “box of pills” that was in his cell. (Id.) Officer Clerk informed Sgt. Voight of the situation. (Id.) After speaking with Sgt. Voight, Daniels was sent to Waupun Hospital's Emergency Room before being sent to the Intensive Care Unit. (Id.)

         Daniels alleges that the defendants have taken preventative action to prevent other prisoners from overdosing on medication, but did not take the same action for him. (Id.) Daniels asserts that the defendants were deliberately indifferent to his needs, failed to intervene regarding his medical care, and have not provided the correct medical treatment. (Id. at 5-6.)

         Analysis

         1. Deliberate Indifference to Medical Care

         Prison officials violate the Eighth Amendment's cruel and unusual punishment proscription when they display “deliberate indifference to serious medical needs of prisoners.” Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2009) (internal citation omitted). The focus is not the objective seriousness of the need, but whether the defendants acted with deliberate indifference, which is a subjective standard. Id. (citing Boyce v. Moore, 314 F.3d 884, 889 (7th Cir. 2002)). “To be deliberately indifferent, the defendants must have acted with a ‘sufficiently culpable state of mind.'” Id. (citing Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005)). The defendants must have knowledge about the plaintiff's serious ...


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