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Kudelka v. Dodge Correctional Institution

United States District Court, E.D. Wisconsin

February 4, 2019

CONRAD KUDELKA, JR., Plaintiff,
v.
DODGE CORRECTIONAL INSTITUTION and DEPARTMENT OF CORRECTIONS, Defendants.

          SCREENING ORDER

          William C. Griesbach, Chief Judge.

         The plaintiff, who is currently serving a state prison sentence at Waupun Correctional Institution (WCI) and representing himself, filed a complaint under 42 U.S.C. § 1983, seeking monetary damages for negligence from the Dodge Correctional Institution (DCI) healthcare staff. The case comes before the court on Plaintiff's motion for leave to proceed without prepaying the full filing fee and to screen the complaint.

         Motion to Proceed without Prepayment of the Filing Fee

         The plaintiff has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). The plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $38.36. The plaintiff's motion for leave to proceed without prepaying the filing fee will be granted.

         Screening of the Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or 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. 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); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, 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).

         Allegations of the Complaint

         The plaintiff was admitted to DCI on September 9, 2016. During intake, the plaintiff was examined and prescribed Molixcam to treat his planters fasciitis. In December of 2016, the plaintiff was transferred to WCI. The plaintiff states that he continued to take Meloxicam for approximately sixteen months. In January of 2018, in response to the plaintiff's difficulties with walking and standing upright, the plaintiff requested to see a nurse who had him rushed to Waupun Memorial Hospital. The plaintiff was operated on immediately as he had an ulcerated gall bladder, ulcerated small intestine, and peritonitis-an infection caused by the ulcers. The surgeon allegedly inquired why the plaintiff was taking Meloxicam and stated that it is not the correct medication to treat planters fasciitis and is also known to cause ulcers. The plaintiff spent three weeks in the hospital recovering followed by two months in the Dodge Infirmary. During this time he was fed by an IV and received morphine.

         In March of 2018 the plaintiff returned to WCI. While there, the plaintiff asked Nurse Ann York about Meloxican and she allegedly stated that it is known to cause ulcers. The plaintiff states that his treatment has left him with a distended stomach for which he wears an abdominal binder to hold in and that he experiences pain and discomfort when he moves from laying down to an upright position. The plaintiff also states that he recently developed a hernia that is attributable to his prior ulcer surgery. Plaintiff is seeking monetary damages “because of the negligence by the healthcare staff at Dodge Correctional in prescribing me a medication that was an inappropriate drug . . . .” ECF No. 1 at 4.

         The Court's Analysis

         Federal courts are courts of limited jurisdiction. In general, federal courts have jurisdiction over cases that arise under federal law or involve disputes between citizens of different States where the amount in controversy exceeds $75, 000. 28 U.S.C. §§ 1331, 1332. In his own words, the plaintiff has asserted a claim for negligence against the health care staff of DCI. Negligence is a common law claim that arises under state law. Since the plaintiff is serving a sentence in a Wisconsin correctional institution, it is unlikely that the dispute is between citizens of different States. It thus follows that this court lacks jurisdiction over the plaintiff's case.

         Most state prisoners who sue in federal court bring claims under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege a person acting under color of state law violated rights secured by the Constitution and laws of the United States. 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48 (1988). Denial of, or deliberate indifference to, a prisoner's serious medical needs can amount to a violation of the Eighth Amendment's proscription of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 106 (1976). But deliberate indifference is more than an inadvertent failure to provide medical care or negligence in treating a medical condition. Id. at 105-07; see also Billman v. Ind. Dep't of Corr., 56 F.3d 785 (7th Cir. 1995). To prevail on a claim for deliberate indifference, a plaintiff must show “something approaching a total unconcern for [his] welfare in the face of serious risks, or a conscious, culpable refusal to prevent harm.” Duane v. Lane, 959 F.2d 673, 677 (7th Cir. 1992) (citing McGill v. Duckworth, 944 F.2d 344 (7th Cir. 1991)). The defendant must have known of and disregarded an “excessive risk” to the inmate's health or safety. Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir.1994).

         To state a claim under § 1983, a prisoner must also name the individual who violated his federal rights. Section 1983 applies to “persons” and requires that the plaintiff allege that a defendant was personally involved in the claimed deprivations. See Kuhn v. Goodlow, 678 F.3d 552, 556 (7th Cir. 2012) (individual must have “caused or participated in an alleged constitutional deprivation.” (citation omitted)); Hildebrandt v. Ill. Dep't of Nat. Res., 347 F.3d 1014, 1039 (7th Cir. 2003) (noting that a defendant may be personally liable only “if the conduct causing the constitutional deprivation occurs at [her] ...


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