United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
February 4, 2019, the court screened the plaintiff's
initial complaint and gave him leave to amend his complaint
because the initial complaint failed to identity the person
or persons who prescribed the Meloxicam without warning him
about its potential to cause ulcers. The plaintiff filed an
amended complaint on March 5, 2019, which the court will now
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
plaintiff was admitted to Dodge Correctional Institution on
September 9, 2016. During intake, the plaintiff was examined
by Dr. Scott Hoftiezer and prescribed Meloxicam to treat his
planters fasciitis. The plaintiff alleges that Dr. Hoftiezer
did not inform him about any of Meloxicam's side effects.
The plaintiff was transferred to Waupun Correctional
Institute (WCI) in December of 2016 where he continued to
take Meloxicam for approximately sixteen months. In January
of 2018, the plaintiff started to experience abdominal pains
which made it extremely difficult for him to stand up and
walk. The plaintiff was seen by a nurse and rushed to Waupun
Memorial Hospital. There, 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 inquired why the plaintiff was taking
Meloxicam and stated that it is not the correct medication to
treat planters fasciitis and that it is 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 to
treat his pain.
plaintiff returned to WCI in March of 2018. While there, the
plaintiff asked a nurse about Meloxicam and she told him it
is known to cause ulcers. The plaintiff alleges that his use
of Meloxicam resulted in the ulcers and peritonitis and that
the surgery to treat those conditions left him with a
distended stomach for which he wears an abdominal binder. The
plaintiff further alleges that he experiences pain and
discomfort when he moves from laying down to an upright
position and that he recently developed a hernia that is
attributable to his prior surgery. The plaintiff is seeking
monetary compensation due to the negligence of Dr. Hoftiezer
and Dr. Hoftiezer's failure to warn him about the
possible consequences of using Meloxicam.
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).
a medical provider's failure to warn about potential side
effects of a medication, “allegations of a substantial
risk of developing a side effect are sufficient to state a
claim of deliberate indifference when a doctor fails to warn
of those side effects.” Fifer v. Holloway, No.
15-CV-1121-JPS, 2016 WL 5793706, at *5 (E.D. Wis. Sept. 30,
2016) (citing Phillips v. Wexford Health Sources,
Inc., 522 Fed.Appx. 364, 367 (7th Cir. 2013)). Of
course, the doctor must also have knowledge of the
substantial side effects in order for the claim to rise above
mere negligence. Phillips, 522 Fed.Appx. at 367.
the plaintiff states that Dr. Hoftiezer never informed him
about the potential side effects of Meloxicam. The
plaintiff's complaint also establishes that Meloxicam
presents a substantial risk of developing ulcers, as both the
surgeon who performed his operation and the nurse he spoke
with after were aware of Meloxicam's potential to cause
ulcers. Although knowledge on the part of Dr. Hoftiezer is
not explicitly alleged, it can be inferred at this stage of
the proceedings, given the allegations that both the surgeon
and the nurse readily knew that Meloxicam was not appropriate
for planters fasciitis and the severe consequences that
occurred. The plaintiff also attached a Meloxicam fact sheet
to his complaint that also warns about the potential of
developing ulcers. ECF No. 10-1. Consequently, the plaintiff
may proceed on a deliberate indifference claim against Dr.
the plaintiff's negligence claim against Dr. Hoftiezer,
which the court will construe as a medical malpractice claim,
“[a] claim for medical malpractice, as all claims for
negligence, requires the following four elements: (1) a
breach of (2) a duty owed (3) that results in (4) an injury
or injuries, or damages. In short, a claim for medical
malpractice requires a negligent act or omission that causes
an injury.” Paul v. Skemp, 2001 WI 42, ¶
17, 242 Wis.2d 507, 625 N.W.2d 860 (internal citation
omitted). The plaintiff alleges that Dr. Hoftizer prescribed
him Meloxicam for his planters fasciitis, a medication not
intended for treatment of that condition, and failed to
advise plaintiff of the severe and substantial side effects
that it causes. As a result, the plaintiff alleges he took
the medication and suffered those severe and substantial side
effects. These allegations are sufficient to state a medical
malpractice claim against Dr. Hoftiezer, over which the court
exercises supplemental jurisdiction. 28 U.S.C. § 1367.
the court finds that the plaintiff may proceed on his Eighth
Amendment and medical malpractice claims against Dr.
Hoftiezer. As the plaintiff is only seeking claims against
Dr. Hoftiezer, and does not state any specific allegations
against Dodge Correctional ...