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Green v. HSU Manager Marchant

United States District Court, E.D. Wisconsin

September 19, 2019

DAMIEN GREEN, Plaintiff,


          William C. Griesbach, Chief Judge, United States District Court.

         Plaintiff Damien Green, who is currently serving a state prison sentence at Wisconsin Secure Program Facility and representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. This matter comes before the court on Plaintiff’s motion for leave to proceed without prepaying the full filing fee and to screen the complaint.


         Plaintiff has requested leave to proceed without prepayment of the full filing fee (in forma pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of the $350.00 filing fee over time. See 28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2). On August 9, 2019, the court waived the initial partial filing fee and directed Plaintiff to advise the court whether he wished to voluntarily dismiss the case within 21 days. Plaintiff has not moved to dismiss the case. As a result, Plaintiff’s motion for leave to proceed without prepaying the filing fee will be granted and the court will screen the complaint.


         The 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).

         To state a cognizable claim under the federal notice pleading system, 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).


         On February 22, 2019, Plaintiff was transferred from Columbia Correctional Institution to Waupun Correctional Institution. Prior to the transfer, Plaintiff had many offsite appointments scheduled, including surgery for his foot. Plaintiff claims the defendants canceled his foot surgery at the Divine Savior Hospital. Plaintiff filed a health services request to ask Health Services Unit (HSU) staff why his surgery was canceled and to inform staff about his excruciating pain. Nurse Block advised Plaintiff at an appointment that Nurse Practitioner Jean Pierre canceled the surgery so that they could coordinate with the security department, which would be responsible for taking Plaintiff to the appointment. Plaintiff advised Nurse Block that he had waited two years for the surgery and asked to speak to the doctor or nurse practitioner. Nurse Block did not allow him to talk to a doctor or nurse practitioner. Plaintiff alleges he wrote to HSU everyday about his pain and suffering. His right foot would swell up to the point where he could not walk. He claims that he was not given pain medication, only acetaminophen, which did not alleviate his pain.

         On March 22, 2019, Plaintiff wrote HSU requesting to see his provider because he was in pain. Later that day, Plaintiff saw Dr. Kron. Plaintiff reported to Dr. Kron that he was scheduled for surgery with a podiatrist but WCI canceled the appointment. He also told Dr. Kron that the podiatrist prescribed Gabapentin, but he had not received it. Dr. Kron responded that he would not order Gabapentin for Plaintiff and provided Plaintiff with another medication to treat his pain. Plaintiff claims this medication made his head hurt and did not relieve his pain. Dr. Kron stated that he would not send Plaintiff to the Divine Savior Hospital for the foot surgery and instead would send him to Waupun Hospital to see its foot doctor. On April 18, 2019, Plaintiff presented to the foot doctor at Waupun Hospital. The doctor took x-rays, noted that Plaintiff’s bone had “popped out” of his foot, and ordered that Plaintiff be sent to the doctor originally scheduled to do the foot surgery. Compl. at 7, Dkt. No. 1. The doctor also ordered T-3 for pain and gout medication. Once Plaintiff returned to WCI, Nurse Pierre refused to give him the medication that the doctor had ordered. WCI called the podiatrist at the Divine Savior Hospital. The podiatrist stated he would not do the surgery because WCI cancelled the appointment. WCI then contacted the UW Hospital to schedule the foot surgery. Plaintiff’s surgery has not been scheduled with UW Hospital.

         In addition, Plaintiff claims that Dr. Kron prevented Plaintiff from getting a catheter every day and only provided a catheter once a week. Plaintiff also claims Dr. Kron stopped Plaintiff’s supply of Betasept, which Plaintiff used to wash his catheter and his hands. He claims that he began peeing and throwing up blood but HSU staff failed to treat him. He also alleges that HSU Manager Marchant failed to make an appointment with UW Hospital to remove the mesh in his stomach, even though he threw up blood and had pain in his stomach.

         The Court’s Analysis

         Plaintiff claims Marchant, Dr. Kron, Nurse Practitioner Pierre, and Nurse Block acted with deliberate indifference when they canceled his foot surgery upon his arrival to WCI. He also asserts that Dr. Kron was deliberately indifferent when he prevented Plaintiff from receiving a new catheter every day and that Marchant was deliberately indifferent when she failed to make an appointment with UW Hospital to remove the mesh in Plaintiff’s stomach.

         The 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 the inmate receives adequate medical care. Farmer v. Brennan, 511 U.S. 823, 832 (1994). Prison officials violate the Constitution if they are deliberately indifferent to a prisoner’s serious medical needs. Id. (citing Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state a claim based on deficient medical care, a plaintiff must demonstrate that he had an objectively serious medical condition and that the defendants were subjectively aware of and consciously disregarded that condition. Id. at 837. A medical need is considered sufficiently serious if the inmate’s condition “has been diagnosed ...

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