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Bowers v. State

United States District Court, E.D. Wisconsin

March 6, 2019



          William C. Griesbach, Chief Judge United States District Court

         Plaintiff David Elijah Bowers, Jr., an inmate who is currently confined in Wisconsin Resource Center (WRC) and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights are being violated. Along with his original complaint, Bowers filed a motion to waive prisoner filing fees. Bowers has since filed an amended complaint along with a motion for leave to proceed without prepayment of the filing fee.

         Bowers is on the restricted filer's list because he has garnered at least three strikes for filing complaints that were dismissed as frivolous, malicious, or for failure to state a claim. 28 U.S.C. § 1915(g). His complaint alleges he is in imminent danger of serious bodily injury, however, and thus the case must proceed. But this does not mean that he is relieved of his obligation to pay the full filing fee. The court is not able to assess whether Bowers has the funds to pay an initial partial filing fee because he has not yet filed a certified copy of his institutional trust account statement for the past six months. While Bowers will ultimately be responsible for paying the full filing fee, the court will proceed to screen his amended complaint given the serious nature of his allegations.

         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 Amended Complaint

         Bowers' latest filing, which he labels an “Amended Complaint in Pursuit of Motion for TRO Injunctive Relief and Appointment of Counsel Due to Imminent Danger, ” ECF No. 7, supersedes the original complaint and is the operative pleading moving forward. See Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). In his amended complaint, Bowers alleges that he has a “strangulated hernia that can cause death” and he is being denied emergency surgery. ECF No. 7 at 1. Bowers alleges that WRC Director Tim Lundquist and Dr. Lauri are aware that his hernia places him in imminent danger and requires immediate surgery but they nevertheless refuse to provide the surgery.

         The Court's Analysis

         The Eighth Amendment prohibits the infliction of “cruel and unusual punishments, ” which includes punishments that involve the unnecessary and wanton infliction of pain. U.S. Const. amend. VIII; Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth Amendment protects an inmate from a governmental actor's deliberate indifference to his basic needs, including medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“[D]eliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.”) (internal citation omitted). To state a claim for deliberate indifference to a serious medical need, a plaintiff “must allege an objectively serious medical condition and an official's deliberate indifference to that condition.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). The plaintiff must allege that the official was subjectively indifferent. Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).

         Bowers alleges that he suffers from a serious medical condition-a strangulated hernia. See Johnson v. Doughty, 433 F.3d 1001, 1014 (7th Cir. 2006) (listing as one of three types of hernia situation a strangulated hernia, “which is a medical emergency mandating surgery”); see also Gonzalez v. Feinerman, 663 F.3d 311, 314 (7th Cir. 2011) (“As we have acknowledged on previous occasions, a hernia can be an objectively serious medical problem.”). He alleges that his strangulated hernia can cause death and puts him in imminent danger, that the defendants are aware of his serious medical condition, and that the defendants have denied him emergency surgery. These allegations are sufficient to state an official capacity claim for injunctive relief against Tim Lundquist, who is WRC's director, and an individual capacity deliberate indifference claim against Lundquist and Dr. Lauri.

         Lundquist and Dr. Lauri may have good reasons for denying Bowers surgery, but at this stage, the allegations in the complaint must be accepted as true and construed in Bowers' favor. See Turley, 729 F.3d at 651. Without an explanation for why Bowers is being denied surgery, his claims may proceed past screening because the court can reasonably infer from the complaint that Bowers' condition requires surgery and that the defendants' refusal to provide surgery was due to deliberate indifference. In the event that the denial of surgery reflects a disagreement among medical personnel regarding the proper course of treatment, Bowers would fail to state a claim. See Burton v. Downey, 805 F.3d 776, 786 (7th Cir. 2015) (“[E]vidence that another doctor would have followed a different course of treatment is insufficient to sustain a deliberate indifference claim.”); Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996) (“Mere differences of opinion among medical personnel regarding a patient's appropriate treatment do not give rise to deliberate indifference.”).

         The case will proceed on Bowers' official capacity claim against Lundquist and individual capacity claim against Lundquist and Dr. Lauri. Because the official capacity claim against Lundquist is treated as a suit against the state that will redress Bowers' alleged harm should he prevail, Hafer v. Melo, 502 U.S. 21, 25 (1991), the State of Wisconsin will be terminated as a separate defendant. Given Bowers' allegation that he has a strangulated hernia and courts' recognition that such a hernia may require emergency surgery, see, e.g., Johnson, 433 F.3d at 1014, the court will direct the defendants to file within fourteen days of the date of this order a response regarding Bowers' claim for injunctive relief that explains the basis for denying him surgery.

         Bowers' request for appointment of counsel that is embedded in his amended complaint will be denied at this time. Bowers requests counsel “due to expert arguments from Doctors with College degrees” and because he has a fifth-grade reading level. ECF No. 7 at 2. Ultimately, it may be necessary to recruit counsel to assist Bowers in bringing his case, but it is premature to make that determination at this time before the defendants have even had an opportunity to respond. The court has no idea whether Bowers has a serious medical problem that requires immediate attention or whether his allegations are a complete fabrication. Presumably, the defendants' response will shed some light on the matter, and the court will be better able to determine whether counsel should be recruited once the defendants are heard. ...

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