United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
se plaintiff Cornelius Flowers, a prisoner currently
incarcerated at Jackson Correctional Institution
(“Jackson”) filed this lawsuit pursuant to 42
U.S.C. § 1983. Flowers claims that defendants, the
medical directors and nurses at the New Lisbon Correctional
Institution (“NLCI”) and Jackson, violated his
constitutional and state law rights in prescribing him pain
medications that eventually caused him kidney damage.
Flowers' complaint is ready for screening as required by
28 U.S.C. § 1915A. After review, the court concludes
that while Flowers may be able to articulate constitutional
and state law claims, he will be required to amend his
complaint to name a proper defendant or defendants and
correct other deficiencies described in this order.
Cornelius Flowers is currently incarcerated at Jackson, but
he begins his complaint with an event that took place in
2007, when he was incarcerated at NLCI. At that time, he fell
from his bunk and injured his back. Flowers alleges that a
doctor prescribed him ibuprofen at that time, and he has been
taking it “constantly” since 2007 because his
back problems have persisted, and that includes since his
transfer to Jackson in 2016.
September 2018, Flowers underwent a routine blood screening,
and the results showed that he developed a severe kidney
problem, apparently attributable to his prolonged use of
ibuprofen. At that time, a nurse told him that he would be
taken off ibuprofen immediately, as he had irreversible
kidney damage. Flowers is seeking monetary damages and for
defendants to pay for a kidney transplant.
not explicit in his complaint, the court infers that
plaintiff seeks to proceed against all of the defendants on
Eighth Amendment deliberate indifference and Wisconsin
negligence claims related to the damage caused by his overuse
of ibuprofen. However, plaintiff has failed to identify a
suable defendant in his complaint. It appears that plaintiff
would like to proceed against all of the HSU staff at both
Jackson and NLCI, but “[a] prison or department in a
prison cannot be sued because it cannot accept service of the
complaint.” Smith v. Knox Cty. Jail, 666 F.3d
1037, 1040 (7th Cir. 2012).
the court were to construe plaintiff's labeling of the
nurses and directors as Doe defendants that could be
identified as this case proceeds, his complaint still
requires dismissal since it does not satisfy the requirements
of Federal Rule of Civil Procedure 8. Rule 8 requires
“‘short and plain statement of the claim'
sufficient to notify the defendants of the allegations
against them and enable them to file an answer.”
Marshall v. Knight, 445 F.3d 965, 968 (7th Cir.
2006). Dismissal is proper “if the complaint fails to
set forth ‘enough facts to state a claim to relief that
is plausible on its face.'” St. John's
United Church of Christ v. City of Chi., 502 F.3d 616,
625 (7th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
state an Eighth Amendment claim, plaintiff must allege facts
supporting an inference that his medical treatment
demonstrates “deliberate indifference” to a
“serious medical need.” Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976); Forbes v.
Edgar, 112 F.3d 262, 266 (7th Cir. 1997). “Serious
medical needs” include (1) life-threatening conditions
or those carrying a risk of permanent serious impairment if
left untreated, (2) withholding of medical care that results
in needless pain and suffering, or (3) conditions that have
been “diagnosed by a physician as mandating
treatment.” Gutierrez v. Peters, 111 F.3d
1364, 1371 (7th Cir. 1997). “Deliberate
indifference” encompasses two elements: (1) awareness
on the part of officials that the prisoner needs medical
treatment and (2) disregard of this risk by conscious failure
to take reasonable measures. Under Wisconsin law, the
elements of a cause of action in negligence are: (1) a duty
of care or a voluntary assumption of a duty on the part of
the defendant; (2) a breach of the duty, which involves a
failure to exercise ordinary care in making a representation
or in ascertaining the facts; (3) a causal connection between
the conduct and the injury; and (4) an actual loss or damage
as a result of the injury. Green Spring Farms v.
Kersten, 136 Wis.2d 304, 307 (1987).
start, prolonged use of ibuprofen may create a risk of
serious impairment such as heart, kidney or liver damage.
See Ibuprofen (Oral Route),
(last visited Aug. 20, 2019). As such, “[b]lood and
urine tests may be needed for unwanted effects.”
Id. This is particularly true for individuals with a
known kidney condition. Yet plaintiff has not alleged facts
suggesting that he suffers from a condition that should have
dissuaded health care professionals from allowing him
unfettered access to ibuprofen for a long period of time.
Assuming that plaintiff did not have a known kidney condition
in 2007, the initial decision to prescribe plaintiff
ibuprofen is not so obviously problematic to support a
reasonable inference of deliberate indifference.
said, it may be reasonable to infer that there was a point in
time at which health care professionals (either at NLCI or
Jackson) should have noticed that plaintiff had been taking
ibuprofen non-stop for years, tested his kidney functioning,
and prescribed or recommended a different pain medication.
Indeed, since plaintiff alleges that he underwent a
“routine” blood test in 2018, plaintiff may have
undergone other similar blood tests since 2007 that may have
alerted HSU staff that his kidneys may not have been
functioning normally earlier. Or, at the very least, a
physician's review of plaintiff's constant,
years-long, use of ibuprofen should have alerted a health
care professional that a change should be made. If plaintiff
reported symptoms suggesting that he may have been
experiencing kidney problems earlier and no one took steps to
address them, this failure also may support a reasonable
inference of negligence, and even possibly deliberate
indifference. See Olive v. Wexford Corp., 494
Fed.Appx. 671, 672-73 (7th Cir. 2012) (reversing dismissal of
claim against a doctor who prescribed a prisoner ibuprofen
knowing that he had a peptic ulcer, since “a physician
who knows that a potential treatment will make the
prisoner worse off must not rely on that approach”).
plaintiff's complaint provides too few details about his
medical history and who was involved in his course of
treatment between 2007 and 2018 to support a reasonable
inference that any individual may have had reason to believe
that plaintiff's continued use of ibuprofen posed a risk
of his health. Therefore, if plaintiff wants to proceed on
his claims in this lawsuit, he will need to file an amended
complaint that (1) identifies a proper defendant and (2)
provides additional allegations about who was involved in his
long-term use of ibuprofen and whether he had a condition
making use of that medication dangerous or presented with
symptoms suggesting that he was suffering adverse side
identify a proper defendant, plaintiff should do his best to
identify health care professionals who were involved in his
care, and had reason to know that he had been taking
ibuprofen for an inappropriate length of time and failed to
take any steps to change his medication and/or intervene to
ensure that his kidneys would not be harmed. See Minix v.
Canarecci, 597 F.3d 824, 833-34 (7th Cir. 2010)
(“[I]ndividual liability under § 1983 requires
personal involvement in the alleged constitutional
deprivation.”). Since it appears that plaintiff has
been unable to identify the individuals involved in his
treatment, he may amend his complaint and identify the
defendant or defendant by the name “Jane Doe” or
“John Doe” as appropriate. Should plaintiff take
that approach, the court will screen his complaint and
plaintiff will then be afforded the opportunity to conduct
discovery that will help him identify and substitute the
provide adequate factual allegations, plaintiff should take
care to provide specific information about what he remembers
about his course of treatment between 2007 and 2018. Further,
plaintiff should draft it as if he is telling a story to
someone who knows nothing about his situation. This means
that he should explain: (1) what happened to make him believe
he has a legal claim; (2) when it happened; (3) who did it;
(4) why; and (5) how the court can assist him in relation to
those events. Plaintiff should set forth his allegations in
separate, numbered paragraphs using short and plain
statements. After he finishes drafting his amended ...