United States District Court, W.D. Wisconsin
CARLOS D. LINDSEY, Plaintiff,
JOLINDA WATERMAN, SANDRA MCARDLE, and JAMES PATERSON, Defendants.
OPINION and ORDER
D. Peterson District Judge
Carlos D. Lindsey, appearing pro se, is a prisoner at
Wisconsin Secure Prison Facility. Lindsey has filed a
complaint under 42 U.S.C. § 1983, alleging that
defendants Jolinda Waterman, Sandra McArdle, and James
Paterson, three medical practitioners employed by the prison,
have denied him access to prescribed asthma inhalers. Lindsey
has asked to file this suit in forma pauperis. Last
year, due to Lindsey's filing of false and unauthorized
documents in another case, I barred him from filing most
types of cases in this court. Lindsey v. Johnston,
No. 18-cv-398, Dkt. 47 (W.D. Wis. Dec. 17, 2018). However,
this bar does not apply to complaints alleging that he is in
imminent danger of serious physical harm.
allow Lindsey to proceed with his complaint because it
alleges imminent danger of serious physical harm.
Initial partial payment
direct Lindsey to submit a copy of his prison trust fund
account statement so the court may determine whether he
qualifies to file in forma pauperis and assess him
an initial partial payment of the filing fee. Once he submits
the statement, the court will assess him an initial partial
payment of the filing fee. This payment will equal 20 percent
of either the average monthly balance of his trust fund
account or the average monthly deposits to his account over
the last six months. 28 U.S.C. § 1915(b)(1). If he
doesn't submit the statement by September 17, 2019, I
will dismiss his case for his failure to comply with §
efficiency, I will screen Lindsey's complaint at this
point, even though he has not yet made the initial partial
payment. I must dismiss any portion that is malicious or
legally frivolous, fails to state a claim upon which relief
may be granted, or asks for money damages from a defendant
who by law cannot be sued for money damages. 28 U.S.C.
§§ 1915 and 1915A. Because Lindsey is not
represented by a lawyer, I must read his allegations
generously. Haines v. Kerner, 404 U.S. 519, 521
(1972) (per curiam).
Eighth Amendment to the United States Constitution forbids
prison officials from intentionally ignoring the risk caused
by a prisoner's “serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 103-04 (1976).
Lindsey alleges that he suffers from respiratory difficulties
and that he has been prescribed a rescue medical inhaler for
asthma or asthma-related symptoms by various medical
professionals. Dkt. 1, at 2-3. He also alleges that each
defendant is refusing him to use an inhaler on an ongoing
basis-most recently Paterson, who discontinued Lindsey's
use of an inhaler because of self-harm concerns. Dkt. 1, at
2-3. This, he alleges, has caused him to suffer ongoing
respiratory difficulties, including mild asthma attacks
following exercise. Dkt. 1, at 3.
has alleged a serious medical need. If a doctor has
recognized that a condition needs treatment, that condition
is a serious medical need. Johnson v. Snyder, 444
F.3d 579, 584- 85 (7th Cir. 2006). And an untreated condition
that causes needless pain and suffering or significantly
affects daily activities is also a serious medical need.
Gutierrez v. Peters, 111 F.3d 1364, 1371-73 (7th
Cir. 1997). Asthma “can be, and frequently is, a
serious medical condition, depending on the severity of the
attacks.” Board v. Farnham, 394 F.3d 469, 484
(7th Cir. 2005). Lindsey says that multiple medical
practitioners, including two doctors, have determined that
his asthma and respiratory difficulties are severe enough to
need treatment by an inhaler. He also says that he suffers
when he cannot use an inhaler, including after exercising.
This is enough to show a serious medical need at the
Lindsey has not alleged that the defendants have
intentionally ignored the risk caused by this need. This
requires an official to know of and ignore “an
excessive risk to inmate health or safety.” Farmer
v. Brennan, 511 U.S. 825, 837 (1994). Lindsey does not
allege that he has been denied medical care, as he states
that he has been seen multiple times for his symptoms. And he
does not allege that Paterson's concerns about
Lindsey's self-harm are unreasonable. Instead, it appears
that Paterson has determined that the risk caused by
Lindsey's “mild” asthma and respiratory
difficulties is outweighed by the risk of self-harm. Thus
Lindsey has not alleged that Paterson, or any other
defendant, has deliberately ignored his medical needs.
of dismissing Lindsey's complaint because it doesn't
state a claim under the Eighth Amendment, I will give Lindsey
a short time period to file an amended complaint that must
explain how each defendant has intentionally ignored the risk
caused by his asthma and respiratory difficulties. If he does
not file an amended complaint by the deadline, I will dismiss
his complaint for failure to state a claim.
1. Plaintiff may have until September 17, 2019, to submit a
trust fund account statement for the period beginning
approximately January 31, 2019, and ...