West v. Matz et al

Filing 22

SCREENING ORDER re 20 Amended Complaint filed by Stevie Allan West signed by Chief Judge William C Griesbach on 11/7/17. The case is DIMISSED with prejudice.. The inmate has incurred a strike. (cc: all counsel and via US Mail to West, Warden, and AAG Finkelmeyer)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

STEVIE ALLAN WEST,
Plaintiff,
v.

Case No. 17-C-1262

SHERIFF JOHN MATZ, et al.,
Defendants.

SCREENING ORDER OF AMENDED COMPLAINT

Plaintiff Stevie West, who is a pretrial detainee at Winnebago County Jail, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. On October 12, 2017,
the court granted West’s motion to proceed in forma pauperis. ECF No. 9. The court also
dismissed the complaint for failure to state a claim and granted West the opportunity to amend his
complaint before November 8, 2017. Id. On November 2, 2017, West filed this amended complaint.
The matter is now before the court to screen West’s amended 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, 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 “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).
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that (1) he was
deprived of a right secured by the Constitution or laws of the United States and (2) the deprivation
was visited upon him by a person or persons acting under the color of state law. Buchanan-Moore
v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac,
384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980).
To state a claim for deliberate indifference to medical care, a prisoner must show that (1) he
suffered from an objectively serious condition which created a substantial risk of harm and (2) the
defendants were aware of the risk and intentionally disregarded it. Farmer v. Brennan, 511 U.S.
825, 842 (1970). Although Farmer established the deliberate indifference to medical care standard
for a prisoner, pretrial detainees are entitled to the same sort of protection as convicted inmates. See
Williams v. Romana, 411 F. App’x 900, 901 n.1 (7th Cir. 2011); Miller v. Hertz, 420 F. App’x 629,
634 (7th Cir. 2011).1 A medical need is considered sufficiently serious if the inmate’s condition “has
been diagnosed by a physician mandating treatment or . . . is so obvious that even a lay person would

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The difference arises because pretrial detainees are not covered by the Eight Amendment,
like convicted prisoners are. See Williams, 411 F. App’x at 901 n.1. Therefore, pretrial detainees
receive their protections under the Fourteenth Amendment’s Due Process Clause. Id. (citing Minix
v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010)).
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perceive the need for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011)
(citations omitted). Evidence of negligence, medical malpractice, or even gross negligence does not
equate to deliberate indifference. Johnson v. Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).
Furthermore, dissatisfaction or disagreement with a doctor’s course of treatment is generally
insufficient. Id.
West’s original complaint for deliberate indifference to a serious medical need was dismissed
because West failed to give notice to defendants about what specific actions or inactions they took
that gave rise to his claims of deliberate indifference. On November 2, 2017, West filed an amended
complaint against Dr. Ken Anuligo, Nurse Beverly, and Sheriff John Matz. ECF No. 20. In his
amended complaint, West alleges that his injury to his back and neck occurred on August 5, 2017,
but he was not seen by the doctor until August 16. Id. at 3. West alleges that Dr. Anuligo ordered
x-rays on August 17, which came back on August 18. Id. West admits that the x-rays showed
nothing wrong with his neck. Id. He also received a prescription of naproxen for his neck and back
pain. Id. On August 30, 2017, West saw Dr. Anuligo again and he was supposed to order more xrays after six weeks. Id. On October 11, 2017, West saw Dr. Anuligo again, who decided to delay
x-rays for another four weeks. Id. He alleges that Nurse Beverly is the “gatekeeper,” who has
responded to all of his requests. Id. at 2. West makes no specific factual allegations against Sheriff
Matz. Id. at 2–3.
West fails to state a claim for deliberate indifference to his medical needs. First, he fails to
establish a serious medical need. From his complaint, it appears his neck is stiff and sore. However,
West admitted that his x-rays showed no injury. Given the relatively brief time that has passed since
the incident giving rise to the problems he alleges, the conservative treatment provided is hardly
unreasonable. Federal courts are not set up to micro-manage medical care within state prisons or
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jails. If West’s pain worsens or continues over a long period of time without improvement and his
custodian fails to follow-up with additional diagnostic testing and/or treatment, he may eventually
have a claim of deliberate indifference. At this point, however, he has failed to alleged facts
sufficient to support a plausible claim of a serious medical need.
Furthermore, West fails to allege deliberate indifference because West is receiving medical
treatment—he just disagrees with it. West has been seen by the jail nurse and the doctor on multiple
occasions. West admits that the doctor has reviewed his x-rays and found nothing wrong with him.
West admits that the doctor has proscribed him Naproxen for his pain. West also admits that Nurse
Beverly has provided him with an extra blanket for neck support. This shows responsiveness—not
indifference— by Nurse Beverly and Dr. Anguligo to West’s injury complaints.
West’s disagreement with his nurse’s and doctor’s proscribed medical treatment plan is
insufficient to state a claim for deliberation indifference. Snipes v. De Tella, 95 F.3d 586, 591 (7th
Cir. 1996) (“Medical decisions that may be characterized as ‘classic examples of matters for medical
judgment’ such as whether one course of treatment is preferable to another, are beyond the
Amendment’s purview. Such matters are questions of tort, not constitutional law.”) (citing Estelle
v. Gamble, 429 U.S. 97, 107 (1976)); see also Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)
(“[Plaintiff] is not entitled to demand specific care. She is not entitled to the best care possible. She
is entitled to reasonable measures to meet a substantial risk of serious harm to her.”). Despite
West’s instance that defendants have been deliberately indifferent to his medical needs, his allegations
show that they have been responsive, but that West disagrees with their course of treatment.
Therefore, West has failed to state a claim for deliberate indifference against Nurse Beverly or Dr.
Anuligo, so those claims are dismissed.

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Furthermore, West fails to bring a claim of deliberate indifference against Sheriff Matz. West
alleges no factual allegations against Sheriff Matz. In order to recover damages under § 1983, “a
plaintiff must establish that a defendant was personally responsible for the deprivation of a
constitutional right.” Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (citing Sheik-Abdi v.
McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994)). Sheriff Matz may not be held liable under a
respondeat superior or negligent supervision because neither of those are grounds for liability under
42 U.S.C. § 1983. Wilson v. City of Chi., 6 F.3d 1233, 1241 (7th Cir. 1993). Therefore, West’s
claim against Sheriff Matz is dismissed.
West has failed to state a claim of deliberate indifference to a serious medical need against
any of the defendants he has named. Because West has already had an opportunity to amend his
complaint to cure his deficiencies and he failed to cure the deficiencies, his action is dismissed with
prejudice for failing to state a claim.
IT IS THEREFORE ORDERED that plaintiff’s complaint is DISMISSED WITH
PREJUDICE pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court shall document that this inmate has
incurred a “strike” under 28 U.S.C. § 1915(g).
IT IS FURTHER ORDERED that the agency having custody of the prisoner shall collect
from his institution trust account the $350 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

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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 the Clerk of Court enter judgment accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the officer in charge of the
agency where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney General,
Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin 53707-7857.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his
appeal.
SO ORDERED this 7th

day of November, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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