United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
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
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.
of the Complaint
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).
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).
of the Amended Complaint
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.
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).
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.
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
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.
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.