Hekenberger v. Intake Officer et al

Filing 7

SCREENING ORDER Granting 2 MOTION for Leave to Proceed Without Prepayment of the Filing Fee filed by Michael F Hekenberger and DISMISSING defendants Imran Sheikh, Aurora Health Care Employees, and Correct Care Solutions, signed by Chief Judge Wil liam C Griesbach on 6/1/2017. A Pro Se Staff Attorney for the district shall request a lawyer to assist the Plaintiff for limited purposes. (cc: Plaintiff, Warden, Brown County Corporation Counsel and Brown County Sheriff John Gossage via US Mail)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL F. HEKENBERGER,
Plaintiff,
v.

Case No. 17-C-619

INTAKE OFFICER, et al.,
Defendants.

SCREENING ORDER

The plaintiff, who is incarcerated at Redgranite Correctional Institution, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated while he was held in
custody at the Brown County Jail awaiting disposition of unspecified criminal charges. This matter
comes before the court on the plaintiff's petition for leave to proceed without prepaying the full filing
fee.
Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C.
§ 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to
proceed in forma pauperis and pay the fee over time. Plaintiff has filed a certified copy of his prison
trust account statement for the six-month period immediately preceding the filing fee of his
complaint, as required under 28 U.S.C. § 1915(a)(2), and had been assessed and paid an initial partial
filing fee of $36.39. Plaintiff’s motion to proceed in forma pauperis will be granted.
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, the 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, accepted as true, “that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). 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).
The complaint alleges that on July 15, 2014, Plaintiff was booked into the Brown County Jail.
He informed the John Doe intake and booking officers that he would be suffering from heroin
withdrawal and would need medical attention. He alleges the intake and booking officers did not
call for medical services. Instead, Plaintiff was sent to the “India Unit.” He pushed the emergency
call button numerous times to request medical attention, but the John Doe officers did not respond.
Plaintiff asserts the John/Jane Doe medical staff did not check on him or provide heroin withdrawal
medication to assist him. He claims he was ultimately taken to the Aurora Health emergency
department by ambulance and received a pacemaker.

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Plaintiff alleges these John/Jane Doe officers and medical staff violated his constitutional
rights. It appears Plaintiff was a pretrial detainee at the time of the incident. It is well-established
that a pretrial detainee must be afforded certain protections under the Fourteenth Amendment.
Although Plaintiff’s claims fall under the Due Process Clause of the Fourteenth Amendment, courts
apply Eighth Amendment case law to evaluate claims of inadequate medical care. See Rice ex rel.
Rice v. Corr. Med. Servs., 675 F.3d 650, 664 (7th Cir. 2012). 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 inmates receive 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)). A prisoner’s claim for deliberate indifference must establish both an objectively
serious medical condition existed and that the defendants were subjectively aware of and consciously
disregarded the prisoner’s medical needs. Id. at 387. Under this standard, Plaintiff has at least stated
a colorable cause of action and may proceed on his deliberate indifference claims against defendants
John Doe intake officer, John Doe booking officer, John/Jane Doe medical staff, John/Jane Doe
officers responsible for answering the emergency call buttons, and John/Jane Doe staff working on
the India Unit. See Foelker v. Outagamie County, 394 F.3d 510 (7th Cir. 2005) (reversing summary
judgment on inmate’s Eighth Amendment claim against county jail and employees, alleging lack of
proper treatment for methadone withdrawal).
Plaintiff also asserts a claim against Correct Care Solutions. “A private corporation is not
vicariously liable under § 1983 for its employees’ deprivations of others’ civil rights.” Gayton v.
McCoy, 593 F.3d 610, 622 (7th Cir. 2010) (citing Iskander v. Vill. of Forest Park, 690 F.2d 126,
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128 (7th Cir. 1982)). Instead, in evaluating § 1983 claims against a private healthcare provider,
courts apply the “policy and custom” standard articulated in Monell v. Department of Social
Services, 436 U.S. 658, 694 (1978). Id. In other words, a private healthcare provider will be held
liable for damages under § 1983 only if its policy or custom caused the alleged violation of the
plaintiff’s rights. Monell, 436 U.S. at 694. To state a claim against Correct Care Solutions, Plaintiff
must identify a concrete policy or custom that caused a constitutional violation. A policy or custom
can take one of three forms:
(1) an express policy that, when enforced, causes a constitutional deprivation; (2) a
widespread practice, that, although not authorized by written law or express
municipal policy, is so permanent and well-established as to constitute a “custom or
usage” with force of law; or (3) an allegation that the constitutional injury was
caused by a person with final policy-making authority.
Brokaw v. Mercer Cnty., 235 F.3d 1000, 1013 (7th Cir. 2000). Here, Plaintiff states that “Correct
Care Solutions is named in this action because their company name is on all medical reports, and at
this point it is unclear what their policies are and if the medical staff in Brown County Jail work for
them or the company.” (Compl. at 3.) Although he mentions that Correct Care Solutions may have
some type of policy, he does not allege what policies, if any, caused a constitutional deprivation of
his rights. Accordingly, Plaintiff fails to state a claim against Correct Care Solutions.
Plaintiff also named Dr. Imran Sheikh as a defendant. He alleges that Department of
Corrections doctors have told him that the pacemaker Dr. Sheikh implanted was not necessary.
However, Dr. Sheikh is not a state actor subject to liability under § 1983. Even if Plaintiff had made
the requisite showing that Dr. Sheikh acted under color of state law, he has failed to establish that
Dr. Sheikh violated his constitutional rights. At most, Plaintiff states a medical malpractice claim.
Simple medical malpractice, however, does not constitute cruel and unusual punishment within the
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meaning of the Eighth Amendment. Estelle, 429 U.S. at 106 (“[A] complaint that a physician has
been negligent in diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”). Accordingly, Plaintiff’s claim against Dr. Sheikh
will be dismissed. And without a federal claim against Dr. Sheikh, the court lacks jurisdiction over
his state law medical malpractice claim. Although relief in federal court is foreclosed to Plaintiff for
his medical malpractice claim, he may purse it in state court. Plaintiff also names Aurora Health Care
employees as defendants, though he does not assert any allegations against them. Therefore, the
court will dismiss them as defendants.
In sum, Plaintiff may proceed on an Eighth Amendment deliberate indifference claim based
on his allegations against defendants John Doe intake officer, John Doe booking officer, John/Jane
Doe medical staff, John/Jane Doe officers responsible for answering the emergency call buttons, and
John/Jane Doe staff working on the India Unit. Of course, at some point the Doe defendants will
need to be identified. The Seventh Circuit has directed district courts to provide assistance to pro
se prison litigants to identify individual defendants alleged to have violated their constitutional rights
when, due to his incarceration, the litigant is unable to do so himself. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009). In Billman v. Indiana Dept. of Corrections,
56 F.3d 785, 789–90 (7th Cir. 1995), the court suggested that the district judge request a lawyer,
pursuant to 28 U.S.C. § 1915(d), to represent the prisoner for the limited purpose of determining
whether the complaint can be amended to name as defendant anyone who there is reason to believe
inflicted an actionable wrong on the plaintiff. Given the fact that the plaintiff is currently incarcerated
at Redgranite Correctional Institution some 80 miles from the Brown County Jail, this would seem
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appropriate in this case. Accordingly, the court will direct the district’s pro se staff attorneys to
recruit counsel for this limited purpose. Counsel may certainly continue representation beyond the
filing of an amended complaint if he wishes, but at this point, the requested representation is limited.
IT IS THEREFORE ORDERED that the plaintiff's motion for leave to proceed in forma
pauperis (ECF No. 2) is GRANTED.
IT IS ALSO ORDERED that defendants Correct Care Solutions, Aurora Health Care
employees, and Dr. Sheikh are DISMISSED.
IT IS FURTHER ORDERED that a Pro Se Staff Attorney for the district request a lawyer,
pursuant to 28 U.S.C. § 1915(d), to assist the plaintiff for the limited purpose of determining
whether the complaint can be amended to name as defendant anyone who there is reason to believe
inflicted an actionable wrong on the plaintiff and in filing an amended complaint naming such
individuals.
IT IS FURTHER ORDERED that the Clerk shall mail a copy of the complaint and this
order upon Brown County Corporation Counsel and Brown County Sheriff John Gossage for
informational purposes only. Neither are named defendants, but should cooperate with counsel for
the plaintiff in identifying those individuals whom he claims were deliberately indifferent to his
serious medical needs. Once an amended complaint is filed naming such defendants, the U.S.
Marshal is directed to effect service pursuant to Federal Rule of Civil Procedure 4. The plaintiff is
advised that Congress requires the U.S. Marshals Service to charge for making or attempting such
service. 28 U.S.C. § 1921(a). The current fee for waiver-of-service packages is $8.00 per item
mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress
requires the court to order service by the U.S. Marshals Service precisely because in forma pauperis
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plaintiffs are indigent, it has not made any provision for these fees to be waived either by the court
or by the U.S. Marshals Service.
IT IS ALSO ORDERED that the agency having custody of the prisoner shall collect from
his institution trust account the $313.61 balance of the filing fee by collecting monthly payments
from the plaintiff’s prison trust account in an amount equal to 20% of the preceding month’s income
credited to the prisoner’s trust account and forwarding payments to the Clerk of Court each time the
amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments shall
be clearly identified by the case name and number assigned to this action. If the plaintiff is
transferred to another institution, the transferring institution shall forward a copy of this Order along
with plaintiff’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where the inmate is confined.
IT IS ALSO ORDERED that the plaintiff shall submit all correspondence and legal material
to:
Honorable William C. Griesbach
c/o Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.

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The plaintiff is further advised that failure to make a timely submission may result in the
dismissal of this action for failure to prosecute.
In addition, the parties must notify the Clerk of Court of any change of address. Failure to
do so could result in orders or other information not being timely delivered, thus affecting the legal
rights of the parties. Therefore, failure to provide your correct address could result in dismissal of
your case for failure to prosecute.
SO ORDERED this 1st day of June, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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