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Foster v. Foster

United States District Court, E.D. Wisconsin

July 6, 2018

ARTHUR L. FOSTER, Plaintiff,
v.
BRIAN FOSTER, LAURA ALSUM, BRADLEY HOMPE, NURSE WHITE, NURSE MARCHANT, DR. MANLOVE, and JON LITSCHER, Defendants.

          ORDER

          J.P. STADTMUELLER U.S. DISTRICT JUDGE.

         Plaintiff, who is incarcerated at Waupun Correctional Institution (“Waupun”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. (Docket #1). The Court screened Plaintiff's original complaint, noted deficiencies therein, and ordered that Plaintiff file an amended complaint curing those deficiencies. (Docket #8). Plaintiff then filed an amended complaint. (Docket #9).

         As with his original complaint, the Court must screen Plaintiff's amended complaint. 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. 28 U.S.C. § 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) (citations omitted); accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).

         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)); see 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. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted); Christopher, 384 F.3d at 881.

         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. § 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)).

         In his amended complaint, Plaintiff first alleges that since July 1, 2012 and continuing through the present, Defendants Jon Litscher (“Litscher”), Laura Alsum (“Alsum”), and possibly others have implemented a policy at Waupun that inmates are allowed (or denied) medical care by a doctor based upon the last digit of the inmate's prison identification number. (Docket #9 at 3).

         Next, Plaintiff alleges that beginning on or around November 1, 2016, certain Defendants denied Plaintiff surgery or other treatment for kidney stones that are causing him severe pain and affecting his ability to work. Id. at 3-4. Specifically, Plaintiff claims that he submitted a request to be seen by health services staff, and Defendants Dr. Manlove, Alsum, and another unnamed person invoked the last-digit policy to deny Plaintiff medical care by a doctor. Id. at 3. Dr. Manlove and Alsum instead authorized an untrained nurse assistant to “exercise doctor duties” to diagnose Plaintiff. Id.

         Plaintiff was then referred to Mark Sateriale (“Sateriale”), a specialist, to treat Plaintiff's lower back pain. Id. Sateriale ordered an ultrasound to help him locate the source of the pain, and the ultrasound revealed that the problem stemmed from Plaintiff's kidneys. Id. The ultrasound was sent to Dr. Manlove, Nurse White (“White”), and Nurse Marchant (“Marchant”) in order for them to formulate a treatment plan. Id. Dr. Manlove, White, and Marchant refused to establish a treatment plan. Id. Plaintiff's acute back and kidney pain continued. Id. at 4.

         In January and February 2017, Plaintiff wrote to White, Marchant, Alsum, and possibly others requesting that they provide him treatment for pain he was experiencing due to kidney stones. Id. Dr. Manlove, White, Marchant, and Alsum knew of Plaintiff's medical issue but denied him care. Id. In addition to these medical personnel, Plaintiff alleges that Defendants Brian Foster (“Foster”), the warden, Bradley Hompe (“Hompe”), a complaint examiner, and possibly others knew of Plaintiff's request for treatment and denied him medical care. Id. He further alleges that Hompe falsified a report about the treatment Plaintiff was receiving. Id. at 3.

         On these allegations, Plaintiff asserts that his rights under the Eighth Amendment have been violated.[1] Plaintiff will be permitted to proceed on Eighth Amendment claims against Litscher in his official capacity and against the other Defendants in their individual capacities, as described below.

         First, Plaintiff's complaint crosses the very low threshold set at screening to state an Eighth Amendment deliberate indifference claim against Dr. Manlove, White, Marchant, Alsum, Foster, and Hompe in their individual capacities. To demonstrate that these Defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment, 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).

         As to the medical personnel Defendants, their decisions in treating Plaintiff's kidney pain might ultimately be explained as the proper exercise of medical discretion, or at worst mere negligence; at the present stage the Court, generously construing Plaintiff's allegations, finds that he states a claim against them. Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012); but see Walker v. Zunker, 30 Fed.Appx. 625, 628 (7th Cir. 2002) (“Mere ...


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