United States District Court, E.D. Wisconsin
KEVIN O. SPENCER, Plaintiff,
SUSAN PETERS, Defendant.
William C. Griesbach, District United States District Judge.
who is currently serving a state prison sentence at Green Bay
Correctional Institution 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.
to Proceed without Prepayment of the Filing Fee
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 October 1,
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.
of the Complaint
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).
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).
of the Complaint
claims that on June 20, 2019, Defendant Susan L. Peters, who
is employed as part of Green Bay Correctional
Institution's medical staff, recklessly gave Plaintiff
acetaminophen, an over the counter pain medication, that
caused him to become very sick. On July 11, 2019, Plaintiff
was treated for “poisonous effects” caused by the
interaction of the acetaminophen with the other medications
Plaintiff was taking, including duloxetine, ocuvite,
fenofibrate, and pysillum tabs. Plaintiff alleges that
Defendant knew he was taking these other medications when she
gave him acetaminophen and ignored standard policies and
procedures and safe clinical practices with her conduct.
claims that Defendant violated his Eighth Amendment rights by
committing medical malpractice and for following unsafe
clinical practices. To state a claim under the Eighth
Amendment, Plaintiff must provide allegations of an (1)
objectively serious medical condition and (2) an
official's deliberate, i.e. subjective, indifference to
that condition. See Perez v. Fenoglio, 792 F.3d 768,
776 (7th Cir. 2015). The medical condition must be
objectively and subjectively serious. Roe v. Elyea,
631 F.3d 843, 857 (7th Cir. 2011). “A medical need is
considered sufficiently serious if the inmate's condition
‘has been diagnosed by a physician as mandating
treatment or . . . is so obvious that even a lay person would
perceive the need for a doctor's attention.'”
Id. (citing Greeno v. Daley, 414 F.3d 645,
653 (7th Cir. 2005)). To satisfy the subjective element, a
plaintiff must show that the defendant acted culpably, a
standard that is higher than negligence or inadvertence.
See Farmer v. Brennan, 511 U.S. 825, 836-41 (1994).
“Even objective recklessness-failing to act in the face
of an unjustifiably high risk that is so obvious that it
should be known-is insufficient to make out a claim.”
Petties v. Carter, 836 F.3d 722, 728 (7th Cir.
2016), as amended (Aug. 25, 2016) (citing Farmer,
511 U.S. at 836-38). This amounts to a standard of criminal
recklessness. Davis v. Kayira, 938 F.3d 910, 915
(7th Cir. 2019) (citing McGee v. Adams, 721 F.3d
474, 481 (7th Cir. 2013)). If a plaintiff alleges
recklessness based on facts “that a healthcare provider
knew enough to infer a substantial risk of harm, he must
prove (1) that the provider was aware of facts supporting the
inference and (2) that the provider actually drew
the inference.” Id. (emphasis in original)
(citing Farmer, 511 U.S. at 837).
simple medical malpractice does not amount to deliberate
indifference under the Eighth Amendment. Kelley v.
McGinnis, 899 F.2d 612, 616 (7th Cir. 1990) (citing
Estelle v. Gamble, 429 U.S. 97, 106, (1976)).
“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”
Estelle, 429 U.S. at 106.
has not plausibly alleged facts to support a claim that
Defendant committed a constitutional violation under the
deliberate indifference doctrine. Plaintiff alleges that
Defendant's actions were “reckless [sic]
irresponsible” and that her “negligence”
caused his sickness. Dkt. No. 1 at 5. If negligent, Plaintiff
has no cause of action under the deliberate indifference
doctrine. If reckless, Plaintiff must show more than
Defendant's awareness that Plaintiff was on other
medication when she prescribed him acetaminophen.
Establishing recklessness to prove deliberate indifference
requires showing that Defendant was actually aware of the
substantial risk of harm at the time she gave acetaminophen
to Plaintiff and intentionally chose to give him the
medication anyway to cause Plaintiff harm. Instead, Plaintiff
describes the conduct as demonstrating “bad
judgment” and “unsafe clinical practices.”
Id. at 3. However, medical malpractice alone does
not violate the Eighth Amendment. In sum, Plaintiff's
allegations do not support the inference that a
constitutional violation occurred or that Defendant was
criminally reckless under the deliberate indifference theory.
See Chaparro v. Easton, No. 94-1460, 1995 WL 94860,
at *1 (7th Cir. Mar. 7, 1995) (affirming summary dismissal,
stating “[t]here is no indication in Chaparro's
complaint that Dr. Easton knew (or even suspected) that the
injection of Kenolog would cause the harmful side effects of
which Chaparro now complains”).
complaint will therefore be dismissed. If Plaintiff wishes to
proceed, he must file an amended complaint curing the
deficiencies in the original complaint as described herein.
An amended complaint must be filed on or before 30 days from
the date of this order. Failure to file an ...