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Johnson v. Stonefeld

United States District Court, E.D. Wisconsin

July 27, 2018

DEWHITE D. JOHNSON, Plaintiff,
v.
DONALD STONEFELD, DR. MARY SAUVEY, J. ZWIERS, PETE ERIKSON, BRIAN FOSTER, DR. PRAPTI KUBER, SUE PETERS, OFFICER EVERSON, and JODENE PERTTU, Defendants.

          ORDER

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

         Plaintiff DeWhite D. Johnson, who is incarcerated at Waupun Correctional Institution, proceeds in this matter pro se. He filed a complaint alleging that Defendants violated his constitutional rights. (Docket #1). This matter comes before the court on Plaintiff's petition to proceed without prepayment of the filing fee (in forma pauperis). (Docket #2). Due to Plaintiff's indigence, the Court waived payment of an initial partial filing fee in his case. (Docket #7). The Court proceeds to screen the complaint.

         The court shall screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 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. 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). 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. “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- 10 (7th Cir. 2003) (citations omitted).

         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)). However, 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) (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's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         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. Section 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. Cnty. 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)).

         Plaintiff's allegations are somewhat disjointed and difficult to follow, but the Court gathers the following general theme. Plaintiff claims that he contracted Type 1 diabetes on October 24, 2015. This occurred in an emergency situation, where Plaintiff was rushed to the hospital and fell into a diabetic coma for three days. He suggests that some of the named defendants, who appear to be medical providers in the Wisconsin prison system, committed “negligence” or “medical malpractice” in failing to diagnose that malady sooner and thus potentially prevent the medical emergency.

         In particular, on July 27, 2015, Plaintiff was seen by Dr. Prapti Kuber (“Kuber”). Kuber is a medical doctor who works at Dodge Correctional Institution (“Dodge”). It is unknown why Plaintiff went to see her, but Kuber diagnosed Plaintiff with an STD. Plaintiff was then transferred to Green Bay Correctional Institution (“GBCI”) at some point between that date and September 25, 2015. From September to October, Plaintiff was seen by various GBCI medical personnel, both nurses and doctors, for symptoms of vomiting, weakness, blurred vision, and extreme thirst. They treated him in various ways, though Plaintiff says that all of their treatments were misguided.

         Plaintiff cannot proceed on his current complaint for numerous reasons. First, not all of the named defendants are mentioned in the factual allegations of the complaint. Those who have no factual allegations stated against them cannot possibly be subject to liability. Second, it appears that Plaintiff may have a joinder of claims problem as between Kuber at Dodge and the GBCI defendants. See Fed. R. Civ. P. 18, 20; George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). It is not clear precisely how Kuber's conduct should be connected to that of the other defendants. If there is no meaningful connection, then Plaintiff cannot sue Kuber and the GBCI defendants in the same lawsuit. Third, Plaintiff makes a passing remark about a “cover-up” committed by Jodene Perttu with respect to certain documents that Plaintiff requested throughout 2017. His conclusory allegations with respect to her state no constitutional claims. Further, that allegation is clearly not connected to the medical treatment issues stemming from the summer and fall of 2015.

         Finally, and most importantly, Plaintiff fails to state any viable claims for relief against the medical defendants. Plaintiff's allegations evoke the Eighth Amendment's guarantee of adequate healthcare for prisoners. Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016). A prison official violates this guarantee when they exhibit deliberate indifference to a prisoner's serious medical needs. Id. at 728. Neither negligence nor medical malpractice is sufficient to state a claim under the Eighth Amendment. Id. Rather, the prison official must be aware of a substantial risk of harm and do nothing to abate it. Id. For medical professionals, a plaintiff must show that their “treatment decision[s] [were] such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the [medical professional] did not base the decision on such a judgment.” Id. at 729 (quotation omitted).

         Plaintiff's allegations fall far short of this standard. He was certainly not ignored by any of the defendants. Each addressed his complaints or symptoms in some manner, even if that was not satisfactory to Plaintiff. Nowhere does Plaintiff allege that their treatment decisions were so poor as to demonstrate that they had abandoned their training and judgment as medical professionals. Indeed, Plaintiff specifically alleges that defendants were negligent or committed malpractice in failing to recognize his diabetes. This is not sufficient to impose constitutional liability on them.

         This analysis should not be surprising to Plaintiff. He filed a lawsuit concerning these same events in October 2017. Johnson v. Stonefeld et al., No. 17-CV-1389-LA (E.D. Wis.), (Docket #1). Judge Lynn Adelman screened Plaintiff's complaint in that case and similarly determined that he failed to state a viable deliberate indifference claim. Id., (Docket #12). Instead of amending his complaint to correct his deficient allegations, Plaintiff dismissed that action without prejudice. Id., (Docket #16).

         This Court will also allow Plaintiff an opportunity to amend his complaint. However, because he filed and voluntarily dismissed a prior action on the same claim, this will be his final chance to rectify his deficient pleading. If his amended complaint does not state a ...


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