United States District Court, E.D. Wisconsin
MARCELLOUS L. WALKER, Plaintiff,
SANDY MCARDLE, et al., Defendants.
William C. Griesbach, Chief Judge
who is representing himself, filed a complaint under 42
U.S.C. § 1983. The Prison Litigation Reform Act (PLRA)
applies to this case because plaintiff was incarcerated when
he filed his complaint. The PLRA requires courts to screen
complaints filed by prisoners to ensure they state a claim
upon which relief may be granted and are not frivolous or
malicious. 28 U.S.C. § 1915A.
19, 2018, U.S. Magistrate Judge William Duffin screened
plaintiff's amended complaint. Although defendants had
not yet been served with the amended complaint, the Wisconsin
Department of Justice consented to the limited exercise of
magistrate judge jurisdiction over those defendants employed
by the State as set forth in the Memorandum of Understanding
between the Wisconsin Department of Justice and the court.
Judge Duffin dismissed defendants Gary Boughton, Mark
Kartmann, Lebbeus Brown, Matthew Scullion, and John and Jane
Doe correctional officers based on plaintiff's failure to
state a claim against them. Judge Duffin allowed plaintiff to
proceed on claims against defendants Laverne Wallace and
Shelly Hill, and he ordered that they be served with the
amended complaint and his screening order.
Sandy McArdle and John Doe healthcare provider are not
employed by the State, so they are not subject to the
court's Memorandum of Understanding with the Department
of Justice. Because they have not had the opportunity to
consent to magistrate judge jurisdiction, Judge Duffin
referred his recommendations regarding those defendants to
the district court for a decision. Judge Duffin notified
plaintiff that he had fourteen days to file written
objections to his recommendations. The case was randomly
referred to this court for a decision on Judge Duffin's
report and recommendation. Before the fourteen days had
passed, some of the parties refused to consent to full
magistrate judge jurisdiction. Accordingly, the case was
randomly reassigned to a district court judge. That random
reassignment also went to this court.
5, 2018, plaintiff filed his objections to Judge Duffin's
screening order. Although plaintiff was instructed to file
objections only to Judge Duffin's recommendations
regarding McArdle and John Doe healthcare provider, he filed
objections both to Judge Duffin's decisions regarding the
State-employed defendants and to his recommendations
regarding McArdle and John Doe healthcare provider. The court
will consider plaintiff's objections to Judge
Duffin's recommendations and will construe his remaining
objections as a request for reconsideration of Judge
Duffin's screening order.
Plaintiff's Objections to Judge Duffin's
Rule of Civil Procedure Rule 72(b) allows a party who
disagrees with a magistrate judge's report and
recommendation to file written specific objections. The
district court judge must make a de novo determination of
those portions of the magistrate judge's decision to
which the party specifically objects. Johnson v. Zema
Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
"If no objections or only partial objection is made, the
district court judge reviews those unobjected portions for
clear error." Id. (citations omitted).
Duffin recommended that plaintiff be allowed to proceed on a
deliberate indifference claim against McArdle based on
plaintiff's allegations that McArdle failed to warn
plaintiff about the side effects of Ondansetron. ECF No. 14
at 17. He also recommended allowing plaintiff to proceed on a
state law claim for informed consent. Id. However,
he recommended that plaintiff not be allowed to proceed on a
deliberate indifference claim based on McArdle's alleged
disagreement with plaintiff about the cause of his symptoms.
Id. at 18. Judge Duffin explained that disagreeing
with an official's medical judgment cannot form the basis
of a deliberate indifference claim. Id. He further
pointed out that McArdle had referred plaintiff to a
psychiatric care nurse for further treatment, which
demonstrated that she did not ignore plaintiff's
symptoms, but exercised her professional judgment in
determining how to best address them. Id. Plaintiff
disagrees with Judge Duffin's analysis, ECF No. 18 at
4-5, but this court does not. The court agrees that plaintiff
fails to state a deliberate indifference claim against
McArdle on these allegations for the reasons stated by Judge
court also agrees that plaintiff fails to state a deliberate
indifference claim against McArdle based on his allegations
that McArdle did not "establish a monitoring
regiment" after plaintiff began to take a common
medication for nausea. ECF No. 14 at 19. To state a claim
under these circumstances, a plaintiff must set forth factual
allegations to support a reasonable inference that the
plaintiff had a significant risk of developing particular
side effects and that the defendant knew the plaintiff had a
significant risk of developing those side effects. See
Phillips v. Wexford Health Sources, Inc., 522 Fed.Appx.
364, 367 (7th Cir. 2013). Plaintiff's complaint does not
contain sufficient factual matter to support such an
inference, so he fails to state a claim.
the court agrees with Judge Duffin's recommendation that
plaintiff fails to state a claim against John Doe healthcare
provider for negligent training, retention and supervision.
Plaintiff merely sets forth the elements of the claim without
any factual support. As the U.S. Supreme Court has explained,
a complaint that offers mere "labels and
conclusions" or a "formulaic recitation of the
elements of a cause of action will not do." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
explains that he "has not had a reasonable opportunity
to discover whether or not McArdle was simply providing
health care services 'under the direction and supervision
of a physician or a nurse anesthetist' or, if she herself
is also a 'physician or a nurse anesthetist.'"
ECF No. 18-1 at 10. Plaintiff asserts that, depending on
which it is, Wisconsin statutes require that he sue
McArdle's employer rather than her. Plaintiff concedes
that he does not know whether Wisconsin statutes require that
he sue McArdle's employer, so the court will not allow
him to proceed against it at this time. After McArdle
responds to plaintiff's complaint, the court will set a
deadline for the completion of discovery. If during discovery
plaintiff obtains information that leads him to believe he is
statutorily required to sue McArdle's employer, he may
file a motion to amend his complaint to name the John Doe
healthcare provider, and the court will consider it at that
Plaintiff's Request for Reconsideration of Judge
Duffin's Screening Order
Rule 54(b), an order adjudicating "fewer than all the
claims or rights and liabilities of fewer than all the
parties . . . may be revised at any time before the entry of
a judgment adjudicating all the claims and all the
parties' rights and liabilities." Fed.R.Civ.P.
54(b). In those circumstances, motions to reconsider
"serve a limited function: to correct manifest errors of
law or fact or to present newly discovered evidence."
Caisse Nationale de Credit Agricole v. CBI Indus.,
Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). "A
manifest error is not demonstrated by the disappointment of
the losing party. It is the wholesale disregard,
misapplication, or failure to recognize controlling
precedent." Oto v. Metro. Life Ins. Co., 224
F.3d 601, 606 (7th Cir. 2000) (internal citations omitted).
does not identify a "manifest error" of law or
fact; he merely disagrees with Judge Duffin's analysis.
With regard to plaintiff's claim that Boughton, Kartmann,
and Brown were negligent because they failed to better mark
the recreation cages, Judge Duffin explained that the harm
plaintiff suffered was caused by his decision to hang
himself, not by how the recreation cages were marked. ECF No.
14 at 14. Plaintiff's ...