Scott v. Walker et al

Filing 10

DECISION AND ORDER signed by Judge Pamela Pepper on 6/29/2015: The court GRANTS 5 Motion for Leave to Proceed In Forma Pauperis, DISMISSES AND STRIKES 8 Amended Complaint, and SCREENS 1 Complaint; it is ORDERED that defendants Dr. James Richter , Richard Heidorn, M.D. and Jeanne Zwiers file a responsive pleading and the remaining defendants are DISMISSED; IT IS ALSO ORDERED that the WI Dept of Corrections collect the $346.35 balance of the filing fee (cc: all counsel; by US Mail to plaintiff and Warden at GBCI) (pwm) Modified on 6/29/2015 (vkb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
STEVEN DIONNE SCOTT,
Plaintiff,
v.

Case No. 14-cv-864-pp

SCOTT WALKER,
WISCONSIN DEPARTMENT OF CORRECTIONS,
ABC INSURANCE COMPANY, GARY HAMBLIN,
CATHY JESS, CHARLES COLE, HALEY PUCKER,
BUREAU OF HEALTH SEVICES, DR. DAVID BURNETT,
LORI ALSUM, LON BECHER, JAMES RICHTER,
RICHARD HEIDORN, MD, JEANNE ZWIERS,
WILLIAM POLLARD, MICHAEL MOHR,
CATHERINE FRANCOIS, DENNIS SCHUH, and
CYNTHIA THORPE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR
LEAVE TO PROCEED IN FORMA PAUPERIS (DKT NO. 5),
STRIKING PLAINTIFF’S AMENDED COMPLAINT (DKT. NO. 8),
AND SCREENING PLAINTIFF’S COMPLAINT (DKT NO. 1)
______________________________________________________________________________
The plaintiff, an inmate incarcerated at the Green Bay Correctional
Institution (“GBCI”) who is representing himself, filed a complaint under 42
U.S.C. §1983, alleging that the defendants violated his civil rights. The case
comes before the court on the plaintiff's motion for leave to proceed in forma
pauperis and for screening of the plaintiff’s complaint.
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis
The Prison Litigation Reform Act applies to this action because the
plaintiff was incarcerated when he filed his complaint. That law gives a district

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court the ability to allow an incarcerated person to proceed without prepaying
the $350 case filing fee, as long as the plaintiff complies with certain
requirements. One of those requirements is that he pay an initial partial filing
fee. On August 7, 2014, the court ordered the plaintiff to pay an initial partial
filing fee of $3.65. Dkt. No. 7. The plaintiff paid that fee on August 21, 2014.
Having reviewed the plaintiff’s motion to proceed without paying the filing fee,
the court concludes that he does not have the funds to pay the balance of the
filing fee at one time. Accordingly, the court will grant the plaintiff’s motion for
leave to proceed without prepaying the filing fee, 28 U.S.C. §1915(b)(4), and will
allow the plaintiff to pay the balance of the filing fee over time from his inmate
account, as described at the end of this order.
Plaintiff’s Amended Complaint
The plaintiff filed his initial complaint on July 21, 2014. Dkt. No. 1. On
October 30, 2014, he filed an amended complaint. The amended complaint
corrects the number of a grievance referenced in the plaintiff’s original
complaint, includes the names of two individuals the plaintiff would like to add
as defendants, and has a number of exhibits attached. Id.
Fed. R. Civ. P. 15(a) allows a party to amend a pleading one time without
court permission, as long as the party does so within twenty-one days after he
served the original complaint. In this case, the plaintiff filed his amended
complaint three months after he filed the original complaint, and did not ask
for leave to file it. In addition, Civil Local Rule 15(a) for the Eastern District
federal court states that anyone filing an amended pleading “must reproduce
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the entire pleading as amended, and may not incorporate any prior pleading by
reference.” The rule also requires the person amending the complaint to “state
specifically what changes are sought by the proposed amendments,” and “[t]he
proposed amended pleading must be filed as an attachment to the motion to
amend.” Civ. L.R. 15(b). The plaintiff did not do either of these things. In
particular, he did not explain why he wanted to add defendants Dennis Schuh
and Cynthia Thorpe to the complaint, or explain what he believes they did that
violated his constitutional rights.
For these reasons, the court will strike the October 30, 2014 amended
complaint (Dkt. No. 8), and will screen only the plaintiff’s original complaint,
(Dkt. No. 1).
Screening
The court must “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 part, or all, of a complaint 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
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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, 110910 (7th Cir. 2003) (citations omitted).
To state a claim under the federal notice pleading system, the plaintiff
must provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). A plaintiff does not need 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 Atl. 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 follow the
principles set forth in Twombly. First, they must “identify[] pleadings that,
because they are no more than conclusions, are not entitled to the assumption
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of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions
with factual allegations. Id. Second, if there are well-pleaded factual
allegations, courts must “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 the defendants: 1) deprived of a right secured by the Constitution or laws
of the United States; and 2) acted under color of state law. Buchanan-Moore v.
Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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. Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)).
Allegations in the July 21, 2014 Complaint
The plaintiff’s complaint includes allegations regarding the medical
treatment he received (and did not receive) for (1) eye problems, (2) severe nerve
and muscle pain, (3) low back pain, and (4) scalp pain and hair loss. These
claims indicate that the plaintiff is alleging that the defendants were
deliberately indifferent to his serious medical needs, in violation of the Eighth
Amendment. 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, 652 (7th
Cir. 2005). A deliberate indifference claim based on inadequate medical
treatment requires, “to satisfy the objective component,” a medical condition
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"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." 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." Id. at 653 (citing Walker v.
Benjamin, 293 F.3d 1030, 1037 (7th Cir. 2002). Disagreement with a doctor's
prescribed course of treatment does not constitute deliberate indifference.
Edwards, 478 F.3d at 831 (citing Estelle v. Gamble, 429 U.S. 97, 107 (1976).
Nor does medical malpractice, or differences of opinion among medical
personnel about appropriate treatments. Greeno, 414 F.3d at 653; Estate of
Cole by Pardue v. Fromm, 94 F.3d 254, 261 (7th Cir. 1996)). On the other hand,
the fact that a plaintiff received some medical care does not automatically
defeat a claim of deliberate indifference if a fact finder could infer the treatment
was "so blatantly inappropriate as to evidence intentional mistreatment likely
to seriously aggravate" a medical condition. Id. at 654 (citing Snipes v. DeTella,
95 F.3d 586, 592 (7th Cir.1996)).
Before the court reviews the plaintiff’s allegations in light of this law, the
court must address a number of problems with the plaintiff’s complaint, and
with the defendants he names.
First, the complaint indicates that the plaintiff sues all of the defendants
in their individual and official capacities. Dkt. No. 1 at 3. Section 1983
prohibits “person[s]” acting under color of law from violating someone’s
constitutional rights. In order to allege a §1983 action against a defendant in
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his or her official capacity, the complaint must allege that ‘official policy is
responsible for [the] deprivation of rights protected by the constitution.” Monell
v. Dept. of Social Serv’s. of City of New York, 436 U.S. 658, 690-91 (1978). The
plaintiff’s complaint contains no facts demonstrating any official policy or
custom. Accordingly, to the extent that the court allows the plaintiff to proceed
against any defendant, it will be in his or her individual capacity only.
Second, the complaint alleges that “[a]ll supervisors are held liable for
the actions and inaction of their subordinates.” Dkt. No. 1 at 3. In fact, the
Seventh Circuit Court of Appeals has held exactly the opposite. 42 U.S.C.
§1983 “creates a cause of action based on personal liability and predicated
upon fault; thus liability does not attach unless the individual defendant
caused or participated in a constitutional violation.” Vance v. Peters, 97 F.3d
987, 991 (7th Cir. 1996), quoting the “long-settled” rule stated in Sheik-Abdi v.
McClellan, 37 F.3d 1240, 1248 (7th Cir. 1994). Section 1983 makes public
employees responsible “for their own misdeeds but not for anyone else's.”
Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir.2009).
Public officials do not have a free-floating obligation to
put things to rights, disregarding rules . . . along the
way. Bureaucracies divide tasks; no prisoner is
entitled to insist that one employee do another's job.
The division of labor is important not only to
bureaucratic organization but also to efficient
performance of tasks; people who stay within their
roles can get more work done, more effectively, and
cannot be hit with damages under § 1983 for not being
ombudsmen.
Id. at 595.

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Additionally, the doctrine of respondeat superior (supervisory liability)
does not apply to actions filed under 42 U.S.C. §1983. See Pacelli v. deVito, 972
F.2d 871, 877 (7th Cir. 1992) (“Section 1983 does not create collective or
vicarious responsibility. Supervisors are not liable for the errors of their
subordinates.”) “The ‘should have known’ theory . . . is both legally deficient
and inconsistent with the demands of effective administration.” Id.
Third, the complaint alleges that “[a]ll medical staff are responsible for
the sufficient, adequate, and proper treatment of all prisoners.” Dkt. No. 1 at 3.
This allegation is another way of attempting to hold all employees liable for the
actions of a few; again, under the cases cited above, the law does not allow that
kind of claim under §1983.
Fourth, the complaint states that the inmate complaint department “has
overlooked the seriousness of all matters pertaining to inadequate medical
treatment.” Id. “One can imagine a complaint examiner doing her appointed
tasks with deliberate indifference to the risks imposed on prisoners. If, for
example, a complaint examiner routinely sent each grievance to the shredder
without reading it, that might be a ground of liability. Or a complaint examiner
who intervened to prevent the medical unit from delivering needed care might
be thought liable.” Burks, 555 F.3d at 595 (citations omitted). But “[r]uling
against a prisoner on an administrative complaint does not cause or contribute
to the violation. A guard who stands and watches while another guard beats a
prisoner violates the Constitution; a guard who rejects an administrative
complaint about a completed act of misconduct does not.” George v. Smith, 507
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F.3d 605, 609–10 (7th Cir.2007). “Although the medical staff may be liable
because . . . treatment was . . . woefully inadequate, [a complaint examiner’s]
failure to realize the potential gravity of the situation does not amount to
deliberate indifference.” Greeno, 414 F.3d at 657. Section 1983 does not
provide a cause of action against examiners who did not shirk their duty or fail
to appropriately handle the plaintiff’s claims. See id.
Accordingly, the court will screen only those allegations in the complaint
that relate to individuals who committed the violations. It will dismiss those
defendants who were not personally involved, and only supervised or employed
those who were.
In his claim about his eyes, the plaintiff may proceed on Eighth
Amendment medical care claims against defendants Richter, Heidorn, and
Zwiers. The court also will exercise supplemental jurisdiction over the plaintiff’s
state law medical malpractice claim against optometrist James Richter. See 28
U.S.C. § 1367.
The plaintiff may proceed on his Eighth Amendment claims regarding
severe nerve and muscle pain, low back pain, and scalp pain and hair loss
against Heidorn and Zwiers.
The court will dismiss the remaining defendants for various reasons,
including that the plaintiff does not mention them in the complaint; that they
are entities which are not subject to suit under §1983 and Wisconsin law; that
their only actions were receiving/reviewing letters from the plaintiff or

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reviewing his grievances; or that they were not personally involved, but had
only supervisory authority over the defendants.
Conclusion
The court GRANTS the plaintiff’s motion for leave to proceed in forma
pauperis (Dkt No. 5).
The court DISMISSES and STRIKES the plaintiff’s amended complaint
(Dkt. No. 8).
The court DISMISSES the following defendants from this action: Dennis
Schuh, Cynthia Thorpe, Governor Scott Walker, Wisconsin Department of
Corrections (DOC/DAI), DOC/DAI Fictitious Insurance Company, Gary
Hamblin, Cathy Jess, Charles Cole, Haley Pucker, Bureau of Health Services,
David Burnett, Lori Alsum, Lon Becher, William Pollard, Michael Mohr and
Catherine Francois.
The court ORDERS that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this court, copies of
plaintiff’s complaint and this order are being electronically sent today to the
Wisconsin Department of Justice for service on the following state defendants:
Dr. James Richter, Richard Heidorn, M.D. and Jeanne Zwiers.
The court ORDERS that, pursuant to the informal service agreement
between the Wisconsin Department of Justice and this court, the defendants
who are served shall file a responsive pleading to the complaint within sixty
(60) days of receiving electronic notice of this order.

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The court ORDERS that the Secretary of the Wisconsin Department of
Corrections or his designee shall collect from the plaintiff's prison trust
account the $346.35 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 Secretary
or his designee shall clearly identify these payments by the case name and
number assigned to this case.
The court ORDERS that, pursuant to the Prisoner E-Filing Program, the
plaintiff shall submit all correspondence and case filings to institution staff,
who will scan and e-mail documents to the Court. The Prisoner E-Filing
Program is in effect at Dodge Correctional Institution, Green Bay Correctional
Institution, Waupun Correctional Institution, and Wisconsin Secure Program
Facility and, therefore, if there comes a time when the plaintiff is no longer
incarcerated at one of those institutions, he will be required to submit all
correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202
The court advises the plaintiff that if he does not timely file documents
and pleadings under the applicable rules and this court’s orders, the court may
dismiss his case for failure to prosecute.
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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.
The court will send a copy of this order to the warden of the Green Bay
Correctional Institution.
Dated at Milwaukee this 29th day of June, 2015.

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