United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge.
who is incarcerated at Oshkosh Correctional Institution
(“Oshkosh”), filed a pro se complaint
under 42 U.S.C. § 1983, alleging that his civil rights
were violated. (Docket #1). 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 $30.20. 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)).
allegations concern allegedly inadequate medical care he
received from prison medical personnel following leg surgery.
Defendant Dr. Sauvey (“Sauvey”), a physician at
Oshkosh, saw Plaintiff in early 2013 for a complaint of leg
pain. (Docket #1 at 5). She diagnosed him with problems in
his Achilles tendon and sent him to an outside specialist,
Dr. Grossman (“Grossman”). Id. Grossman
determined that Plaintiff needed surgery on the Achilles
tendon, which he performed in March 2013. Id.
had difficulties healing after the surgery, including
bleeding through his bandages, puss draining from his wound,
odor emanating from the wound, and pain. Id. at 5-6.
This occurred despite the fact that prison medical staff
cleaned his wound and changed his bandages twice daily.
Id. He complained of pain and possible infection to
many medical personnel, including Sauvey. Id. at 6.
He was given pain medication but the prison staff seemed to
believe that the wound was healing properly. Id. As
for Grossman, Plaintiff accuses him of not putting stitches
in the wound originally, which he denied, and not doing
enough to abate the growing infection. Id. at 7.
Plaintiff further alleges that over time his pain
medications, antibiotics, and wound dressing schedule were
changed or stopped by the physicians without sufficient
reason and despite his ongoing complaints of pain and
infection. See id.
about a month, Plaintiff was shipped off to Dodge
Correctional Institution (“Dodge”) for more
intensive medical care, as Dodge has a more robust medical
facility. Id. at 8. During May 2013, Plaintiff
received care from Dodge medical staff. Id. He
complains about the quality of the care he received there,
but he names none of the Dodge medical personnel as
defendants in this case. Id. Plaintiff contends that
his condition continued to worsen, with the wound turning
from green to white to black, and he became bound to a
wheelchair for a period of time. Id. at 8-9.
saw Grossman again in early June 2013. Id. at 9.
Grossman advised that another surgery was required on the
Achilles tendon. Id. He performed the second surgery
on June 12, 2013. Id. Plaintiff complains that he
was not seen by a doctor for over a week after the surgery,
though he did receive bandage changes daily. Id. He
was returned to Oshkosh, and at a follow-up appointment on
June 25, he learned that he needed to see a dermatologist for
wound care and a skin graft. Id. at 10.
Plaintiff's pain medications were stopped from June 27 to
July 6, which he says kept him in severe pain during that
reports no problems in recovery during July and August 2013.
Id. He received a skin graft in September 2013.
Id. He was ordered to have daily bandage changes,
but on some days this did not occur and Plaintiff believes
that the Oshkosh Health Services Unit (“HSU”) did
not have the correct equipment for the job. Id.
Plaintiff alleges he experienced pain and soreness in late
September and October 2013. Id. at 11.
recovery appeared to proceed normally for a year and a half,
until in May 2015 Plaintiff noticed a bump around the
surgical site that broke open and spilled blood and puss.
Id. Plaintiff was seen in the HSU, the staff cleaned
the wound, and Dr. Murphy (“Murphy”) told him the
new infection was not from the original wound. Id.
Murphy prescribed antibiotics and took a sample of the wound
for a culture. Id. At some point, an HSU nurse
decided that Plaintiff was being given the wrong medication
and changed Plaintiff's prescription. Id.
wound, according to Plaintiff, was painful and infected.
Id. at 11-12. Plaintiff again started daily wound
cleanings in the HSU. Id. However, Plaintiff reports
that he was not given pain medication. Id.
Eventually doctors learned that Plaintiff had an infection
resulting from blood transfusions and the “hospital
environment.” Id. at 12. He was denied a
medical restriction to a bottom bunk despite his complaints
of pain. Id. In July 2015, Murphy opened the wound,
drained it, and medicated and bandaged it. Id. at
Plaintiff claims that the pain, blood, and puss continued.
Id. Nursing staff denied his requests to see Murphy.
Id. He was eventually seen by the doctor again on
August 5, 2015. Id. Plaintiff appears to disagree
with Murphy's plan of care, which was to continue
bandaging and observing the wound. Id. at 14. For
the next few ...