United States District Court, E.D. Wisconsin
ORDER DISMISSING CASE
William C. Griesbach, United States District Court Chief
23, 2018, Plaintiff Israel Colón, an inmate at Fox
Lake Correctional Institution who is proceeding pro
se, filed this civil action under 42 U.S.C. § 1983,
alleging that his constitutional rights were violated. At
screening, Colón was allowed to proceed on Eighth
Amendment claims against Terry Kiser, Jan Britt, Sherri
Pulda, Robert Frank, and Beatrice Superville relating to
treatment they provided for eczema on Colón's left
pinky finger. On May 31, 2019, defendants Kiser, Britt,
Pulda, and Frank filed a motion for summary judgment. The
motion included copies of Civil L.R. 56, which requires a
party opposing a motion for summary judgment to file response
materials within thirty days of service of the motion, and
Civil L.R. 7, which informs parties that failing to file a
memorandum in opposition to a motion is sufficient cause for
the court to grant the motion. Dkt. No. 35-1. Colón
did not respond to the motion.
9, 2019, Magistrate Judge William E. Duffin filed a Report
and Recommendation recommending that the motion be granted
based on Colón's lack of response and his failure
to diligently pursue his case. Colón was informed that
he could file written objections to the recommendation within
14 days of service of the recommendation. To date,
Colón has not filed objections. Given
Colón's failure to respond to the motion for
summary judgment or to object to the Report and
Recommendation, the court will adopt the Report and
Recommendation and grant Britt, Frank, Kiser, and Pulda's
motion for summary judgment.
the only remaining defendant, has yet to be served. The
United States Marshals Service has twice attempted to serve
Superville, once in New York and once in Nebraska, but
neither attempt was successful. See Dkt. Nos. 21,
38. The next step would be to direct a third service attempt.
That step need not be taken, however, because a reexamination
of the allegations in Colón's complaint reveals
that he fails to state a claim against Superville.
alleges that he saw Superville on May 8, 2018, and asked that
she conduct a “patch test.” Am. Compl., Dkt. No.
10, at 4. Superville conducted the test and diagnosed
Colón with dyshidrotic eczema, for which she
prescribed betamethasone 1% valerate 15 grams, a
corticosteroid used to treat the itching, redness, dryness,
inflammation, and other discomfort caused by various skin
conditions, including eczema. Id.; Betamethasone
(last revised Feb. 15, 2018). Colón again saw
Superville on May 18, 2018. Colón noted that his
finger had improved but that he still experienced cracking of
the skin, painful irritation under his nail, and aching. Am.
Compl., Dkt. No. 10, at 4. Superville prescribed a trial of
clobetasol ointment and told Colón to bandage his
finger at night. Id. Colón then filed a
complaint in this court, dated May 20, 2018, which he later
amended on September 26, 2018. Dkt. Nos. 1, 10.
it is true that a prisoner's receipt of some treatment
does not foreclose a deliberate indifference claim “if
the treatment received was ‘so blatantly inappropriate
as to evidence intentional mistreatment likely to seriously
aggravate his condition, '” Arnett v.
Webster, 658 F.3d 742, 751 (7th Cir. 2011) (quoting
Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005)),
there are no allegations in the amended complaint, nor can it
be reasonably inferred, that Superville's treatment was
blatantly inadequate or that she intentionally mistreated
Colón. Just the opposite: Colón alleges that
Superville performed the patch test he requested, prescribed
a medication that improved his condition, and then, ten days
later, prescribed another medication to address the remaining
symptoms. In the absence of allegations of Superville's
intentional, subjective indifference to Colón's
condition, Colón does not state an Eighth Amendment
claim against Superville. See Little v. Moon, 769
Fed.Appx. 388, 389 (7th Cir. 2019) (“The absence of a
culpable state of mind regarding the inflicted injury is
fatal to the complaint.” (citing Duckworth v.
Ahmad, 532 F.3d 675, 680 (7th Cir. 2008))); see also
Farmer v. Brennan, 511 U.S. 825, 834 (1994) (recognizing
that an Eighth Amendment violation requires a
“sufficiently culpable state of mind” (citations
omitted)); Estelle v. Gamble, 429 U.S. 97, 105
(1976) (noting that although “deliberate indifference
to a prisoner's serious illness or injury states a cause
of action under s. 1983, ” that conclusion “does
not mean, however, that every claim by a prisoner that he has
not received adequate medical treatment states a violation of
the Eighth Amendment”).
IS THEREFORE ORDERED that the court
ADOPTS the Report and Recommendation (Dkt.
No. 37), GRANTS Britt, Frank, Kiser, and
Pulda's motion for summary judgment (Dkt. No. 24), and
DISMISSES all claims against Beatrice
Superville for ...