DeJesus v. Giese et al

Filing 71

ORDER signed by Judge J P Stadtmueller on 10/14/11: directing the U.S. Marshal serve a copy of the amended complaint, summons and this order upon the defendants; ordering defendants to file a responsive pleading to the amended complaint; directing th e Administrator of the Bureau of Prisons or his designee to collect from the plaintiffs prison trust account the balance of the filing fee owed by collecting monthly payments and forwarding same to the clerk of the court as specified. See Order. (cc: plaintiff, Warden of Terre Haute Federal Correctional Institution, AAG Corey F. Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
EDWIN DEJESUS,
Plaintiff,
v.

Case No. 10-CV-12 -JPS

ALL MEDICAL STAFF,
WAUKESHA COUNTY JAIL,
NURSES, DOCTORS, names
unknown,

ORDER

Defendants.

The plaintiff, Edwin DeJesus, filed a pro se civil rights complaint under
42 U.S.C. § 1983, and requested leave to proceed in forma pauperis.

The

plaintiff paid an initial filing fee of $38.24. On March 23, 2010, the court
granted the plaintiff’s motion for leave to proceed in forma pauperis. On
January 6, 2011, the court addressed various motions in which the plaintiff
sought to identify the names of defendant nurses and doctors on the medical
staff assigned to the Waukesha County Jail facility. The court also directed
him to file an amended complaint naming each of the defendants he wished
to sue, describing his proposed claims, and detailing the defendants’
personal involvement in the facts underlying those claims. Now before the
court is the plaintiff’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). The court may, therefore, dismiss a claim as frivolous where it is
based on an indisputably meritless legal theory or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109-10
(7th Cir. 2003) (citations omitted).
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). It is not
necessary for the plaintiff to plead specific facts and his statement need only
“give the defendant fair notice of what the…claim is and the grounds upon
which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers “labels and conclusions” or “formulaic recitation of the elements of a
cause of action will not do.” Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937,
1949 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint
must contain sufficient factual matter, accepted as true, “that is plausible on
its face.” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint
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allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumption
of truth.” Iqbal, 129 S. Ct. at 1950. Legal conclusions must be supported by
factual allegations. Id. If there are well-pleaded factual allegations, the court
must, second, “assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id.
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 color of state law.

Buchanan-Moore v. County of

Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of North
Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S.
635, 640 (1980). The court is obliged to give the plaintiff’s pro se allegations,
“however inartfully pleaded,” a liberal construction. See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
Finally, an amended complaint supersedes a prior complaint and must
be complete in itself without reference to the original complaint. See Duda v.
Bd. of Educ. of Franklin Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir.
1998). In Duda, for instance, the appellate court emphasized that in such
instances, the “prior pleading is in effect withdrawn as to all matters not
restated in the amended pleading[.]” Id. at 1057 (citation omitted).

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1.

FACTUAL BACKGROUND
The plaintiff was a pretrial detainee at the Waukesha County Jail. He

alleges that defendants Nurse Debra Link, Nurse Elizabeth Fredrick, Dr.
Punoose Mackiel, and jail administrator Michael D. Griese failed to give him
his medication for high blood pressure and heartburn. The plaintiff also
seeks to add the Waukesha County Sheriff’s Department and the County of
Waukesha as defendants. The plaintiff states that Waukesha County violated
governmental practices and policies.
According to the plaintiff, all of the named defendants were aware
that he takes medication for high blood pressure and heartburn. However,
he alleges that the defendants refused to give him these medications for
approximately two weeks. At the end of the two-week period, he was taken
to Waukesha Memorial Hospital and diagnosed with a “hypertension
attack.” Compl. at 3. He alleges that the attack was caused “because of being
refused medication.” Id.
For relief, the plaintiff requests two million dollars, legal fees, and an
order directing the defendants to refrain from retaliating against him for the
filing of the present suit.
2.

ANALYSIS
2.1

Defendants
2.1.1

Individual Defendants

Defendants Link, Fredrick, Mackiel, and Griese are named as
defendants in the amended complaint. Only a defendant who is personally
responsible for depriving the plaintiff of a constitutional right may be held
liable under § 1983. Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008);
Trujillo v. Williams, 465 F.3d 1201, 1227 (10th Cir. 2006); Farrell v. Burke,449
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F.3d 470, 484 (2d Cir. 2006). If someone else has committed the act that
resulted in the constitutional deprivation, then the defendant is personally
responsible, and thus liable under § 1983, only if he knows about the other
person’s act, has a realistic opportunity to prevent it, but deliberately or
recklessly fails to do so. Lewis v. Downey, 581 F.3d 467, 472 (7th Cir. 2009);
Smith v. Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002); Anderson v. Branen, 17
F.3d 552, 557 (2d Cir. 1994). Here, the plaintiff alleges that defendants Link,
Fredrick, Mackiel, and Griese personally deprived him of medication. Thus,
they may be named as defendants.
2.1.2

Waukesha County Sheriff’s Department

A police department is not a suable entity under § 1983. Best v. City
of Portland, 554 F.3d 698 (7th Cir. 2009) (citing Chan v. Wodnicki, 123 F.3d 1005,
1007 (7th Cir. 1997); West v. Waymire, 114 F.3d 646, 646-47 (7th Cir. 1997)).
Thus, the plaintiff may not name the Waukesha County Sheriff’s Department
as a defendant in the present suit.
2.1.3

Waukesha County

The plaintiff also wishes to add Waukesha County as a defendant.
Therefore, it appears that he wishes to proceed on a county policy claim. The
county may be liable for monetary damages under § 1983 if the
unconstitutional act complained of is caused by: (1) an official policy adopted
and promulgated by its officers; (2) a governmental practice or custom that,
although not officially authorized, is widespread and well settled; or (3) an
official with final policy-making authority. Thomas v. Cook County Sheriff’s
Dep’t, 604 F.3d 293, 303 (7th Cir. 2010) (citations omitted). To demonstrate
that Waukesha County is liable for a harmful custom or practice, the plaintiff
must show that county policymakers were “deliberately indifferent as to
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[the] known or obvious consequences.” Id. (quoting Gable v. City of Chi., 296
F.3d 531, 537 (7th Cir. 2002)). In situations where rules or regulations are
required to remedy a potentially dangerous practice, the county’s failure to
make a policy is also actionable. Id. (citing Sims v. Mulcahy, 902 F.2d 524, 543
(7th Cir. 1990)). Thus, the plaintiff may name Waukesha County as a
defendant; however, he must present evidence that the County was
deliberately indifferent to a harmful custom or practice for the claim against
the County to survive at the next stage of this proceeding.
2.2

Medical Care Claim

The plaintiff is a pretrial detainee. Pretrial detainees have a right to
adequate medical care under the Fourteenth Amendment, and the court
evaluates those claims using the same standard for deliberate indifference
that it uses for prisoners under the Eighth Amendment. See Grieveson v.
Anderson, 538 F.3d 763 (7th Cir. 2008)
The Eighth Amendment protects against cruel and unusual
punishment. To make out an Eighth Amendment claim based on inadequate
medical care, a plaintiff must show that prison officials were deliberately
indifferent to his or her serious medical needs. Edwards v. Snyder, 478 F.3d
827, 830 (7th Cir. 2007); Farmer v. Brennan, 511 U.S. 825, 834 (1994); Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005). A deliberate indifference claim
requires both an objectively serious risk of harm and a subjectively culpable
state of mind. Edwards, 478 F.3d at 830; Farmer, 511 U.S. at 834; Greeno, 414
F.3d at 653. A deliberate indifference claim requires, to satisfy the objective
element, a medical condition "that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would
perceive the need for a doctor's attention." Edwards, 478 F.3d at 830 (quoting
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Greeno, 414 F.3d at 653).

The subjective component of a deliberate

indifference claim requires that the prison official knew of "a substantial risk
of harm to the inmate and disregarded the risk." Greeno, 414 F.3d at 653
(citing Farmer, 511 U.S. at 834). Mere medical malpractice or a disagreement
with a doctor's medical judgment is not deliberate indifference. Edwards, 478
F.3d at 830-31 (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976)). Yet, a
plaintiff's receipt of some medical care does not automatically defeat a claim
of deliberate indifference if a fact finder could infer that the treatment was "so
blatantly inappropriate as to evidence intentional mistreatment likely to
seriously aggravate" a medical condition. Edwards, 478 F.3d at 830-31 (citing
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir.1996)).
Here, the plaintiff alleges that he had a serious medical need which
required that he take certain medications. He also alleges that the defendants
were aware of his condition and need for medications but that they failed to
provide him with the necessary prescriptions. Thus, he has alleged sufficient
facts to make out an Eighth Amendment medical care claim.
IT IS THEREFORE ORDERED that the United States Marshal shall
serve a copy of the amended complaint, the summons, and this order upon
the defendants 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 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.
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IT IS ALSO ORDERED that the defendants shall file a responsive
pleading to the amended complaint.
IT IS FURTHER ORDERED that the Administrator of the Bureau of
Prisons or his designee shall collect from the plaintiff's prison trust account
the $311.76 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 the 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.
IT IS ALSO ORDERED that copies of this order be sent to the
Warden of Terre Haute Federal Correctional Institution and to Corey F.
Finkelmeyer, Assistant Attorney General, Wisconsin Department of Justice,
P.O. Box 7857, Madison, Wisconsin, 53707-7857.
IT IS FURTHER ORDERED that the plaintiff shall submit all
correspondence and legal material to:
Honorable J.P. Stadtmueller
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.
The plaintiff is hereby notified that he is required to send a copy of
every paper or document filed with the court to the opposing parties or their
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attorney(s). Fed. R. Civ. P. 5(a). The plaintiff should also retain a personal
copy of each document. If the plaintiff does not have access to a photocopy
machine, he may send out identical handwritten or typed copies of any
documents. The court may disregard any papers or documents which do not
indicate that a copy has been sent to each defendant or to their attorney(s).
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.
Dated at Milwaukee, Wisconsin, this 14th day of October, 2011.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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