United States District Court, E.D. Wisconsin
ARTHUR L. FOSTER, Plaintiff,
BRIAN FOSTER, LAURA ALSUM, BRADLEY HOMPE, NURSE WHITE, NURSE MARCHANT, DR. MANLOVE, and JON LITSCHER, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
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).
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).
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.
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.
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.
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,
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).
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.
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.
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.
these allegations, Plaintiff asserts that his rights under
the Eighth Amendment have been violated. 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
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).
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)