United States District Court, E.D. Wisconsin
JAMES G. FREER, Plaintiff,
RENEE WALKER and UNKNOWN NURSE AT AGNESIAN HEALTH CARE, Defendants.
STADTMULLER U.S DISTRICT JUDGE.
a prisoner proceeding pro se, filed this complaint
on October 29, 2019 alleging that a nurse violated his
constitutional rights when she unsuccessfully attempted to
insert an IV into his hand before a surgery, causing him
great pain. (Docket #1). On November 7, 2019, the Court
screened the complaint pursuant to 28 U.S.C. § 1915A,
and denied Plaintiff's motion to proceed in forma
pauperis on the grounds that Plaintiff had failed to
state a claim. (Docket #6). On November 11, 2019, Plaintiff
filed a motion for reconsideration and a motion to allow
payment of the partial filing fee from his release account.
(Docket #9, #10). The Court will now examine the motion for
reconsideration and explain why that motion must be denied.
may file a motion to alter or amend judgment “no later
than 28 days after the entry of the judgment.”
Fed.R.Civ.P. 59(e). “[T]he only grounds for a Rule
59(e) motion. . .are newly discovered evidence, an
intervening change in the controlling law, and manifest error
of law.” Cosgrove v. Bartolotta, 150 F.3d 729,
732 (7th Cir. 1998). A party may file a motion for relief
from a judgment or order under certain circumstances that
include “mistake, inadvertence, surprise, or excusable
neglect, ” or “any other reason that justifies
relief.” Fed R. Civ. P. 60(b)(1), (6).
points to no change in law or manifest error in law that
warrants an alteration or amendment of judgment under Rule
59(e). After examining Plaintiff's motion, the Court does
not find any basis to provide relief under Rule 60(b),
either. Plaintiff argues that he is not seeking relief
against a governmental entity, officer, or employee, and
therefore Section 1915A(5) does not apply. (Docket #9 at 5).
Presumably, Plaintiff believes that the if he is not suing a
governmental employee, then the Court will not be empowered
to screen his complaint. However, “district courts have
the power to screen complaints filed by all litigants,
prisoners and non-prisoners alike, regardless of fee
status.” Rowe v. Shake, 196 F.3d 778, 783 (7th
Cir. 1999). Additionally, Plaintiff claimed jurisdiction
under 28 U.S.C. § 1331, on the basis of a federal
question. (Docket #1 at 4). His constitutional claim against
Nurse Renee Walker (“Walker”) was the basis for
the Court's jurisdiction in this case; if Walker is to be
considered a private citizen for the purposes of this case,
then this matter should have been filed in state court.
U.S.C. § 1915A allows the court to review “a
complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a
governmental entity.” 42 U.S.C. § 1983 makes
actionable any constitutional violation visited upon a
plaintiff by an official acting under the color of law. The
Bill of Rights, which includes the Eighth Amendment's
cruel and unusual punishment provision, protects citizens
from improper governmental involvement. See
Witkowski v. Milwaukee Cty., 480 F.3d 511, 512 (7th Cir.
2007) (“The [B]ill of [R]ights protects people from the
government but does not oblige the government to furnish
protection against private violence.”); Timbs v.
Indiana, 139 S.Ct. 682, 687 (2019) (explaining that the
Bill of Rights applies to the federal government and,
increasingly, to state governments). Accordingly, the Court
inferred that Walker was contracted by the DOC and thereby
acting under color of law. See Shields v. Ill. Dep't
of Corr., 746 F.3d 782, 789-90 (7th Cir. 2013) (holding
that private companies and their employees who act under
color of state law can also be sued under Section 1983)
(citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970)). If this was not the case and Walker was
simply a private citizen, Plaintiff may sue her for
negligence in Wisconsin state court.
interest of thoroughness, the Court will re-revisit
Plaintiff's initial complaint, as well as the additional
information that he provided in the motion for
reconsideration, in order to confirm that it fails to state a
claim for a constitutional violation. Plaintiff made the
following allegations in his initial complaint, which are
recopied here from the screening order:
alleged that Walker willfully abused him when she inserted an
IV needle through his vein. Plaintiff described the needle
action as “into and out of (at the same time) my
vein.” The mis-directed needle caused him great pain,
and he asked Walker several times to stop, but she continued
to try to place the IV needle into his vein. At the end of
the ordeal, there was blood flowing down his wrist into a
gauze bandage. Walker dismissed his complaints by saying,
“aren't you a nervous nelly.” Another nurse
watched the exchange and neither said nor did anything.
motion for reconsideration, he provides the following
additional facts: on November 3, 2016, he attempted to
complain about Walker to the State of Wisconsin Department of
Corrections (“DOC”). He was informed that because
the incident took place at Waupun Memorial Hospital
(“WMH”), he needed to contact them because the
Wisconsin DOC had no control over staff at WMH. (Docket #9-1
at 1). He contacted WMH and requested video recordings of his
hospitalization, but was told that those video recordings
“are the property of corrections and not the
hospital.” Id. at 2. He was assured, however,
that the nurse wore gloves during the IV insertion process,
and he need not be concerned about any disease transfer.
Id. Over two years later, on April 2, 2019,
Plaintiff sent a request to the Waupun Correctional
Institution, seeking the video from WMH. Id. at 3.
He was informed that WMH did not have the video from October
31, 2016 (the date the incident occurred). Id.
also provides a series of medical progress notes that
document Plaintiff's claims that he was abused by a
nurse. The progress reports indicate that he had two red
marks on his hand, and note that “both sites [are]
fully healed-only pinpoint [marks] remaining at this
time.” (Docket #9-1 at 4). Finally, Plaintiff includes
his complaint from November 1, 2016, in which he describes
the unpleasant moment when Walker attempted to insert the IV.
In this complaint, he explains that the needle went through
his skin like a single stitch: “in the process of
inserting the IV needle [the nurse] inserted it most
violently causing my legs to literally shake. I immediately
yelled, stop, this hurts!. . .my cries to stop were
ignored. I saw where the needle went into/under my
skin and outside of my skin in the exit hole! She
said on her way out your[‘re] a nervous nelly
[aren't] ya with a smile.” Id. at 7.
facts, though more detailed, do not mandate a result that is
different from the Court's original screening order. As
the Court previously explained, Plaintiff does not allege
facts that suggest that Walker acted with deliberate
indifference to a serious medical need. (Docket #6 at 5).
There are no facts to support the inference that she left
Plaintiff bleeding and in pain; that, if left untreated, the
puncture wound would have resulted in an “unnecessary
and wanton infliction of pain, ” (to the contrary, the
exhibits in the motion for reconsideration suggest that the
pinpricks were healed up within a couple weeks of the
incident; see (Docket #9-1 at 4)); or that Plaintiff
did not need the IV at all (the exhibits in the motion for
reconsideration indicate that Plaintiff was at WMH for
surgery; see id.). As explained in the screening
order, not only is there no serious medical need alleged, but
there are also insufficient facts to infer that Walker acted
with deliberate indifference. Medical procedures involving
needles can be uncomfortable, and patient responses may range
from squeamishness to fainting-this is particularly true if a
nurse mis-inserts a device, which happens in non-prisoner
settings as well. Absent facts suggesting that this IV
puncture resulted in a serious and untreated harm, Plaintiff
fails to state a claim for an Eighth Amendment violation.
IT IS ORDERED that Plaintiff's motion
for reconsideration (Docket #9) be and the same is hereby
DENIED; and IT IS FURTHER
ORDERED that Plaintiff's motion to allow payment
of the partial filing fee from release account (Docket #10)
be and the same is hereby DENIED as moot.
He also claimed diversity jurisdiction
pursuant to 28 U.S.C. § 1332; however, Plaintiff and
Nurse Renee Walker are both citizens of Wisconsin, (Docket #1
at 1), ...