United States District Court, E.D. Wisconsin
P. Stadtmueller U.S. District Judge
proceeding pro se, filed a complaint under 42 U.S.C.
§ 1983 alleging that his civil rights were violated
while he was incarcerated at Oshkosh Correctional
Institution. (Docket #1). He has since been released from
confinement. (Docket #8). This matter comes before the Court
on Plaintiff's motion to proceed in forma
pauperis. (Docket #2). Plaintiff has been assessed and
paid an initial partial filing fee of $11.50. 28 U.S.C.
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. Id. §
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);
Gladney v. Pendelton Corr. Facility, 302 F.3d 773,
774 (7th Cir. 2002). 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;
Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v. Marberry, 658 F.3d
702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d
879, 881 (7th Cir. 2004). However, a complaint that offers
“‘labels and conclusions'” or
“‘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. The complaint
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555; Christopher, 384 F.3d at 881.
considering whether a complaint states a claim, courts should
first “identif[y] 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 “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. § 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); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
The Court is obliged to give 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)).
alleges that Defendants were deliberately different to his
serious medical needs, in violation of the Eighth Amendment.
(Docket #1). However, his allegations at present fail to
plausibly state such a claim.
state a claim for deliberate indifference to a serious
medical need, the inmate must allege that (1) he had an
objectively serious medical condition; (2) the defendants
knew of the condition and were deliberately indifferent to
treating it; and (3) this indifference caused him some
injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir.
2010). An objectively serious medical condition is one that
has been diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would perceive
the need for a doctor's attention. Id. It need
not be life-threatening. Id. It suffices if the
condition would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.
deliberate indifference to such a medical need, the plaintiff
must demonstrate that the prison officials in question (1)
had subjective knowledge of the risk to the inmate's
health and (2) disregarded that risk. Id. Negligence
cannot support a claim of deliberate indifference, nor is
medical malpractice a constitutional violation. Estelle
v. Gamble, 429 U.S. 97, 105-06 (1976); Roe v.
Elyea, 631 F.3d 843, 857 (7th Cir. 2011). Moreover, even
if a defendant recognizes the substantial risk, he is free
from liability if he responded reasonably to the risk, even
if the harm ultimately was not averted. Gayton, 593
F.3d at 620.
allegations do not satisfy any of the elements of his
sought-after claim. He says that he had a serious medical
condition that “caused [him] being unable to eat solid
foods” and which required specialist care, but he does
not explain what the condition actually was. (Docket #1 at
2). Further, he claims that he received inadequate care over
a period of two years, in the form of being denied treatment
and pain medication. Id. These allegations might
state a claim for deliberate indifference, but Plaintiff does
not clearly explain what each Defendant did or failed to do
and when. Indeed, he does not actually mention any of the
Defendants in his substantive allegations. Other than a
general sense that the named Defendants are primarily medical
staff at the prison, the Court is left in the dark as to why
they are named in this case and what constitutional
violations each allegedly undertook. The lack of any
meaningful detail about the who, what, and when of his
allegations means that he cannot proceed on the complaint in
its present form. See Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995) (prison officials generally are
liable under Section 1983 only for their personal conduct,
not the conduct of others or of those they supervise).
Court will allow Plaintiff an opportunity to amend his
complaint to correct these deficiencies. If he chooses to
offer an amended complaint, Plaintiff must do so no later
than May 8, 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);
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 in forma pauperis (Docket #2)
be and the same is hereby GRANTED;
IS FURTHER ORDERED that on or before May 8,
2018, Plaintiff shall file an amended pleading or
this action will be dismissed; and
IS FURTHER ORDERED that Plaintiff shall submit all