United States District Court, E.D. Wisconsin
William C. Griesbach, Chief United States District Judge.
John Lyndon Perry, Sr., filed a pro se complaint
pursuant to 42 U.S.C. § 1983, alleging that Defendants
Tom Burling and Debra Bellin violated his constitutional
rights when they ignored his complaints and requests for a
CPAP machine to treat his sleep apnea. The court screened
Plaintiff's complaint on May 2, 2019, and allowed
Plaintiff to proceed on claims of deliberate indifference and
negligence against Defendants. Defendants filed their answer
on July 2, 2019. Plaintiff filed an amended complaint on July
12, 2019. The court will screen the amended complaint
pursuant to 28 U.S.C. § 1915A.
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. § 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, accepted as
true, “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
amended complaint, Plaintiff claims that he suffers from high
blood pressure, diabetes, and sleep apnea. In 2018, Plaintiff
was transferred from the Milwaukee County Jail to Dodge
Correctional Institution (DCI). Upon his arrival at DCI,
Plaintiff submitted several health services requests (HSR) to
the Health Services Unit (HSU) complaining that he had
difficulty breathing at night and requesting that he be
provided with a CPAP machine or be allowed to have his
personal machine sent to the institution. Plaintiff presented
to an appointment with a health care provider, shortly after
arriving at DCI, and advised the provider that he had sleep
apnea. He alleges that the provider told him he would be
provided with a CPAP machine and fitted Plaintiff for a mask.
October 25, 2018, Plaintiff submitted an HSR complaining
about his sleep apnea and asking when he would receive a CPAP
machine. Plaintiff sent another HSR on November 17, 2018,
asking about the status of the CPAP machine and explaining
hat he wakes up at night with a chocking sensation and
shortness of breath. Plaintiff alleges that the November 17,
2018 HSR was forwarded to RN Tom Burling, but Burling never
saw Plaintiff or treated him.
December 5, 2018, Plaintiff was transferred to Redgranite
Correctional Institution (RGCI). Plaintiff submitted an HSR
on December 21, 2018, complaining that he was not able to
breathe due to his sleep apnea and explaining that he needed
a CPAP machine. The following day, Plaintiff received a
response from RN Bellin, who indicated that Plaintiff was
scheduled to be seen in HSU. Plaintiff alleges Bellin never
saw Plaintiff about his complaints.
January 9, 2019, Plaintiff submitted another HSR to the HSU
manager stating that he was afraid he might die in his sleep
because he is unable to breathe without a CPAP machine. He
submitted an inmate complaint on January 22, 2019, informing
staff that he was sleeping on the floor underneath his bed so
that he can put his face up against the vent to get the
proper air to breathe. Plaintiff claims that he suffered
physical pain and injury as well as cognitive and
requests the following relief from the court: (1) a
declaratory judgment that the defendants violated his Eighth
Amendment rights; (2) an injunction requiring that the
defendants provide Plaintiff with the sleep apnea equipment
he needs; (3) an award of $250, 000 for his Eighth Amendment
claim; (4) an additional award of $250, 000 to compensate
Plaintiff for his physical pain and suffering; and (5) an
award of $250, 000 for his state law negligence claim.
Eighth Amendment prohibits “cruel and unusual
punishments” and imposes a duty on prison officials to
take reasonable measures to guarantee an inmate's safety
and to ensure that he receives adequate medical care.
Farmer v. Brennan, 511 U.S. 825, 832 (1994). A
prison official's deliberate indifference to a
prisoner's medical needs or to a substantial risk of
serious harm to an inmate violates the Eighth Amendment.
Id. at 828; see also Estelle v. Gamble, 429
U.S. 97, 103 (1976). To state a claim of deliberate
indifference, the complaint must contain sufficient
allegations to establish that the inmate had an objectively
serious medical condition and that the defendants were
deliberately indifferent to that condition. Gomez v.
Randle, 680 F.3d 859, 865 (7th Cir. 2012). Deliberate
indifference requires more than negligence; it requires that
the official know of, yet disregard, an excessive risk to the
inmate's health or safety. Farmer, 511 U.S. at
835, 837. Plaintiff alleges in the amended complaint that
Burling and Bellin ignored his complaints and requests for a
CPAP machine and that their refusal and delay in treatment
resulted in physical pain and injury as well as cognitive and
psychological injuries. The allegations in the amended
complaint are sufficient to state a claim against Burling and
Bellin. Plaintiff may also proceed on his state law
negligence claim against Burling and Bellin. The court will
exercise supplemental jurisdiction over the state law claim.
See 28 U.S.C. § 1367(a).
has failed to state claims of deliberate indifference and
negligence against the John/Jane Doe health care provider,
however. The allegations in the amended complaint demonstrate
that the provider approved Plaintiff's request for a CPAP
machine to treat his sleep apnea. In other words, the
provider did not ignore Plaintiff's complaints and sought
to obtain the medical device for Plaintiff. As a result, the
amended complaint does not contain allegations to support
that John/Jane Doe health care provider was deliberately
indifferent to Plaintiff's serious medical needs. In
addition, Plaintiff has not alleged that the provider was
negligent because the amended complaint does not contain
allegations that the provider failed to “exercise that
degree of care and skill which is exercised by the average
practitioner in the class to which he belongs, acting in the
same or similar circumstances.” Sawyer v.
Midelfort, 227 Wis.2d 124, 149, 595 N.W.2d 423 (1999).
John/Jane Doe health care provider will therefore be
dismissed as a defendant. The court will also dismiss K.
Thompson as a defendant because the amended complaint does
not contain any allegations against this defendant. The court
finds that Plaintiff may proceed on his deliberate
indifference and negligence claims against Burling and
IS THEREFORE ORDERED that John/Jane Doe health care
provider and K. Thompson are DISMISSED as
defendants in this case.
IS FURTHER ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this court, a copy of Plaintiff's amended complaint
and this order are being electronically sent today to the
Wisconsin Department of Justice for service on the
IS FURTHER ORDERED that the defendants file a