Goodvine v. Pasha et al

Filing 15

ORDER signed by Judge Lynn Adelman on 1/31/13 granting 2 Motion for Leave to Proceed in forma pauperis. Further ordering the United States Marshal to serve a copy of the complaint and this order upon defendants Dr. Azzem Pasha and Mercy Medical Center. Further ordering defendants Pasha and Mercy Medical Center to file responsive pleadings to the complaint. Further ordering the $348.21 balance of the filing fee to be collected from plaintiff's prison trust account as directed in the order. See order for details. (cc: all counsel, via USPS to plaintiff, Warden-CCI, AAG Corey Finkelmeyer) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER GOODVINE,
Plaintiff,
v.

Case No. 13-CV-0017

DR. AZZEM PASHA,
MERCY MEDICAL CENTER, and
ABC INSURANCE COMPANY,
Defendants,

ORDER
Plaintiff, Christopher Goodvine, a state prisoner, filed a pro se complaint alleging
violations of the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C.
§ 1395dd, and medical malpractice. This matter comes before me on plaintiff's motion for
leave to proceed in forma pauperis and for screening of plaintiff’s complaint.
Plaintiff is required to pay the statutory filing fee of $350.00 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. 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), and has been assessed and paid an
initial partial filing fee of $1.79. I will grant his motion.
I am also required to screen complaints brought by parties proceeding in forma
pauperis. 28 U.S.C. § 1915(e)(2). I 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. Id.
To 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). It is not necessary for 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, 556 U.S. 662, 678 (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.” Id. (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 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, 556 U.S. at 679. 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.

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On October 15, 2012, while he was incarcerated at the Wisconsin Resource Center
(WRC), plaintiff attempted suicide by lacerating his arm. Plaintiff lost consciousness and
was rushed to Mercy Medical Center in Oshkosh, Wisconsin, where he was treated by
emergency room physician Dr. Azzem Pasha. Plaintiff asserts that Dr. Pasha was hostile
to him because plaintiff was a prisoner who had attempted suicide. Dr. Pasha made
several disparaging comments regarding plaintiff and never asked plaintiff how long or how
much he had bled.
The nursing staff at WRC had stanched the bleeding before transferring plaintiff to
the hospital. Dr. Pasha waited to see if the bleeding would start again or if plaintiff would
require surgery. When it was apparent the bleeding would not start again, the laceration
was closed with 12-13 sutures. Plaintiff was discharged from the hospital within 4-5 hours.
Dr. Pasha was aware that plaintiff had lost a significant amount of blood, that his
blood count was very low, his potassium and calcium levels were very low, and that he was
malnourished, dehydrated, and suffering from the concomitants of malnourishment and
dehydration. Dr. Pasha nevertheless discharged plaintiff from the hospital after only a few
hours without further treatment.
Additionally, an emergency room nurse and physician’s assistant asked plaintiff if
he would hurt himself again, and plaintiff stated, “I’m afraid so.” (Complaint at 7). Yet
plaintiff was discharged without being evaluated by a mental health professional.
Shortly after returning to WRC, plaintiff was transferred to a Wisconsin Department
of Corrections prison, where he attempted suicide again and was sent to Divine Savior
Hospital in Portage, Wisconsin. The physician at Divine Savior Hospital admitted plaintiff
and ordered a blood transfusion during which plaintiff received at least one liter of blood.
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The physician told plaintiff that this transfusion was required because of the significant
blood loss on October 15 and again on October 18.
Plaintiff sets forth two claims against Dr. Pasha and Mercy Medical Center under
EMTALA: (1) failure to appropriately screen and stabilize plaintiff’s medical conditions of
malnourishment and dehydration, and (2) failure to screen and stabilize plaintiff’s mental
health conditions of depression and suicidal thoughts.
EMTALA was enacted to address the problem of “patient
dumping,” where hospitals transferred indigent patients from
one hospital to the next while their emergency medical
conditions worsened. EMTALA requires hospitals receiving
federal funds to screen for an emergency medical condition
any patient who comes to the hospital; if an emergency
condition exists, the patient may not be transferred to another
hospital or discharged until he or she has received stabilizing
treatment.
Curry v. Advocate Bethany Hosp., 204 Fed.Appx. 553, 556 (7th Cir. 2006) (citations
omitted).
The EMTALA applies to psychiatric conditions as well as medical conditions.
Thomas v. Christ Hosp. and Medical Center, 328 F.3d 890, 893 (7th Cir. 2003). The
EMTALA defines “stabilized” as a state in which “no material deterioration of the condition
is likely, within reasonable medical probability, to result.” 42 U.S.C. § 1395dd(e)(3)(B); see
also Thomas, 328 F.3d at 893. The Health Care Financing Administration, Department of
Health and Human Services promulgated Federal Regulations and Interpretive Guidelines
for EMTALA that provide that a psychiatric patient is considered to be “stable when he/she
is no longer considered to be a threat to him/herself or to others.” Thomas, 328 F.3d at
893.

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Plaintiff’s complaint contains sufficient allegations to proceed on both screening and
stabilization claims regarding both his medical and mental health needs. These claims are
against Dr. Pasha and Mercy Medical Center.
I will now consider plaintiff’s state law medical negligence claim against Dr. Pasha
and his insurer and his claim against Mercy Medical Center and its insurer that the hospital
had a policy or custom of not treating providing adequate treatment to prisoners. “That the
treatment provided was ineffective – that it may even have involved a misdiagnosis or
malpractice – does not violate EMTALA so long as [the patient] was stabilized. EMTALA
is not a federal malpractice statue.” Curry, 204 Fed.Appx. at 556. Nevertheless, the court
will exercise supplemental jurisdiction over plaintiff’s state law claims, including medical
malpractice against Dr. Pasha and a claim that Mercy Medical Center has a policy or
custom of providing insufficient medical and mental health treatment to prisoners. See 28
U.S.C. § 1367(a).
Therefore,
IT IS ORDERED that plaintiff’s motion for leave to proceed in forma pauperis
(Docket #2) is GRANTED.
IT IS FURTHER ORDERED that the United States Marshal shall serve a copy of the
complaint and this order upon defendants Dr. Azzem Pasha and Mercy Medical Center
pursuant to Federal Rule of Civil Procedure 4. 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

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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.
IT IS ALSO ORDERED that defendants Dr. Azzem Pasha and Mercy Medical
Center shall file responsive pleadings to the complaint.
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from plaintiff's prison trust account the $348.21
balance of the filing fee by collecting monthly payments from 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 the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant Attorney
General, Wisconsin Department of Justice, P.O. Box 7857, Madison, Wisconsin, 537077857.
IT IS FURTHER ORDERED that plaintiff shall submit all correspondence and legal
material to:
Honorable Lynn Adelman
% Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS. It will
only delay the processing of the matter.
Plaintiff is notified that from now on, he is required under Federal Rule of Civil
Procedure 5(a) to send a copy of every paper or document filed with the court to the
opposing party or, if the opposing party is represented by counsel, to counsel for that party.
Fed. R. Civ. P. 5(b). Plaintiff should also retain a personal copy of each document. If
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 the opposing party or that
party’s attorney, if the party is represented by an attorney.
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 31st day of January, 2013.
s/ Lynn Adelman
LYNN ADELMAN
District Judge

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