United States District Court, E.D. Wisconsin
DEWHITE D. JOHNSON, Plaintiff,
DONALD STONEFELD, DR. MARY SAUVEY, J. ZWIERS, PETE ERIKSON, BRIAN FOSTER, DR. PRAPTI KUBER, SUE PETERS, OFFICER EVERSON, and JODENE PERTTU, Defendants.
STADTMUELLER U.S. DISTRICT JUDGE.
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.
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. §
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)
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).
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. 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)).
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
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.
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.
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).
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.
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).
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 ...