United States District Court, E.D. Wisconsin
TERRANCE J. SHAW, Plaintiff,
MS. VASQUEZ and LAURA FRAZIER, Defendants.
Stadtmueller, U.S. District Judge.
who is incarcerated at Racine Correctional Institution
(“RCI”), 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 #4). Plaintiff has been assessed and
paid an initial partial filing fee of $95.73. 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 repeated failures by RCI medical staff to
provide him with needed medication following heart surgery.
Defendants are Ms. Vasquez (“Vasquez”), the
Health Services Unit (“HSU”) manager at RCI, and
Laura Frazier (“Frazier”), the assistant HSU
manager. (Docket #1 at 1). Plaintiff alleges that he
underwent heart catheterization surgery on October 12, 2016
and was prescribed Plavix, a medication intended “to
keep the heart stent from clotting and preventing a stroke
and/or sudden death.” Id. at 2. When he
returned to RCI from the hospital where the surgery was
performed, he told Defendants that he was prescribed Plavix
and that the surgeon ordered that it be administered
immediately. Id. Additionally, the transport
officers handed the doctor's order to HSU staff when they
dropped off Plaintiff. Id.
despite his numerous written requests that the medication be
administered, Plaintiff was not given any Plavix until a week
later, on October 20, 2016. Id. at 2-3. A day
earlier, Plaintiff had seen the surgeon for a follow-up
appointment, and the surgeon, appalled at the failure to
administer the medication, called and berated the RCI medical
staff, stating that they were not to miss a single daily dose
of the medication. Id. at 3.
the problem persisted. Each time Plaintiff's medication
was nearly out, he would request a refill, but the refill was
not timely provided and several days would pass in which he
would have no Plavix to take. Id. at 3-7. Plaintiff
would submit additional written requests to the HSU inquiring
about the refill, but to no avail. Id. He would
thereafter submit inmate grievances complaining about the
delays, and the examiner would chide the medical staff,
noting that the examiner had consulted with Frazier about the
continuing problem. Id. Yet, the problem recurred
several times, well into 2017. Id. Plaintiff claims
he suffered severe chest pain and anguish as a result of the
repeated delays. Id. at 7.
complaint crosses the low threshold set at screening to state
a claim for deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment. To sustain such
a claim, Plaintiff must show: (1) an objectively serious
medical condition; (2) that Defendants knew of the condition
and were deliberately indifferent in treating it; and (3)
this indifference caused him some injury. Gayton v.
McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry has two components. “The official
must have subjective knowledge of the risk to the
inmate's health, and the official also must disregard
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). To show that a delay in providing
treatment is actionable under the Eighth Amendment, Plaintiff
must also provide evidence that the delay exacerbated his
injury or unnecessarily prolonged pain. Petties v.
Carter, 836 F.3d 722, 730-31 (7th Cir. 2016). At the
present stage the Court, generously construing
Plaintiff's allegations, find that he states a claim
against Defendants for deliberate indifference to his serious
medical needs. Thus, Plaintiff shall be permitted to proceed
on a claim of deliberate indifference to his serious medical
needs, in violation of the Eighth Amendment, against
Defendants. 28 U.S.C. § 1915A(b).
IT IS ORDERED that Plaintiff's motion
for leave to proceed in forma pauperis (Docket #4)
IS FURTHER ORDERED that, pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this Court, copies of Plaintiff's complaint and this
Order are being electronically sent today to the Wisconsin
Department of Justice for service on Defendants;
IS FURTHER ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice
and this Court, Defendants shall file a responsive pleading
to the complaint within sixty (60) days of receiving
electronic notice of this Order;
IS FURTHER ORDERED that the agency having custody of
the prisoner shall collect from his institution trust account
the balance of the filing fee by collecting monthly payments
from Plaintiff's prison trust account in an amount equal
to 20% of the preceding month's income credited to
Plaintiff's trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds
$10 in accordance with 28 U.S.C. § 1915(b)(2). The
payments shall be clearly identified by the case name and
number assigned to this action. If Plaintiff is transferred
to another institution, ...