Scott v. Walker et al

Filing 28

DECISION AND ORDER signed by Judge Pamela Pepper on 2/11/2016 DENYING 17 Defendant Richter's Motion to Dismiss; DENYING 24 Plaintiff's Motion for Physical Examination; and DIRECTING Defendant Richter to file an answer to the complaint by 3/3/2016. Please refer to the order for additional pertinent details. (cc: all counsel; by US Mail to plaintiff)(pwm)

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

Case No. 14-cv-864-pp

JAMES RICHTER,
RICHARD HEIDORN, MD, and
JEANNE ZWIERS,
Defendants.
______________________________________________________________________________
DECISION AND ORDER DENYING DEFENDANT JAMES RICHTER’S
MOTION TO DISMISS (DKT. NO. 17), DENYING PLAINTIFF’S MOTION FOR
PHYSICIAL EXAMINATION (DKT NO. 24), AND DIRECTING JAMES
RICHTER TO FILE AN ANSWER TO PLAINTIFF’S COMPLAINT
______________________________________________________________________________
The plaintiff, Steven Dionne Scott, is representing himself on Eighth
Amendment medical care claims against the defendants, and on a state law
medical malpractice claim against optometrist James Richter. Dkt. No. 10 at 9.
The case comes before the court on Richter’s motion to dismiss (Dkt. No. 17)
and the plaintiff’s motion for physical examination under Federal Rule of Civil
Procedure 35(a) (Dkt. No. 24).
I.

DEFENDANT RICHTER’S MOTION TO DISMISS
Defendant James Richter argues that the plaintiff’s claims against him

should be dismissed because (1) the plaintiff’s only vision-related issue is
untreatable in adults and not a serious medical need; (2) Richter referred the
plaintiff to a doctor for a medical evaluation of his migraine concerns and the
plaintiff was seen a week later by Dr. Richard Heidorn; and (3) the plaintiff’s
1

medical malpractice claims are barred by the applicable statute of limitations.
For the reasons outlined below, the court will deny Richter’s motion to dismiss.
A.

Motion to Dismiss Standard

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the
complaint, not its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). When evaluating a motion to dismiss
under Rule 12(b)(6), the court accepts as true all well-pleaded facts in the
complaint and draws all reasonable inferences from those facts in the plaintiff's
favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a motion to dismiss under Rule 12(b)(6), a complaint must allege “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955 (2007).
“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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937 (2009). In this context, “plausible,” as opposed to “merely conceivable
or speculative,” means that the plaintiff must include “enough details about the
subject-matter of the case to present a story that holds together.” Carlson v.
CSX Transp., Inc., 758 F.3d 819, 826-27 (7th Cir. 2014) (quoting Swanson v.
Citibank, N.A., 614 F.3d 400, 404–05 (7th Cir. 2010)). “[T]he proper question to
ask is still could these things have happened, not did they happen.” Id. at 827
(internal quotation and citation omitted). The plaintiffs “need not ‘show’

2

anything to survive a motion under Rule 12(b)(6)—[they] need only allege.”
Brown v. Budz, 398 F.3d 904, 914 (7th Cir. 2005).
B.

Serious Medical Need

First, Richter argues that the only diagnosis he made on June 3, 2011,
was amblyopia (“lazy eye”), which other courts have found is untreatable in
adults and not a serious medical need. See Graham v. Hulick, Civil No. 07-728GPM, 2009 WL 2413808, at *2 (S.D.Ill. Aug. 5, 2009). The question of whether
amblyopia is a serious medical need is not the deciding factor on the motion to
dismiss, however; the plaintiff says he had a different and more serious
medical condition (anterior uveitis) that Richter did not find and that was not
diagnosed until September 2011. The plaintiff also alleges that he had migraine
headaches, which could have been a symptom of an eye problem. At this stage
of the litigation, the plaintiff has alleged sufficient facts to support a claim that
he had a serious medical need.
C.

Deliberate Indifference

Next, Richter argues that the plaintiff does not state a claim against him
because Richter was not deliberately indifferent to the plaintiff. Richter argues
that he evaluated the plaintiff, diagnosed amblyopia, and referred the plaintiff
to a medical doctor for evaluation of his concerns about migraine headaches.
Dr. Heidorn saw the plaintiff a week later. Richter submits that there was
nothing else he could do as an optometrist so he referred the plaintiff to a
medical doctor.

3

Richter basically asks the court to assume that his version of the facts is
the correct one, to adopt that version, and to dismiss him on that basis. This is
tantamount to Richter asking the court to skip discovery, dispositive motions
and trial and to just assume that that process would prove his facts. That is
not the procedure a court follows in deciding whether the facts alleged in a
complaint are sufficient to survive a motion to dismiss. The plaintiff stated an
Eighth Amendment medical care claim regarding the treatment Richter
provided. The plaintiff is entitled to conduct discovery regarding his claims
against Richter before the court can conclude whether Richter knew that the
plaintiff suffered from a condition more serious than amblyopia, and failed to
diagnose it.
Richter responds that misdiagnosis alone is insufficient to state an
Eighth Amendment claim. He relies on Williams v. Guzman, 346 Fed.Appx.
102, 106 (7th Cir. 2009), but that case was an appeal from a grant of summary
judgment. Richter also cites Johnson v. Doughty, 433 F.3d 1001, 1013 (7th
Cir. 2006) for the following proposition: “It is not enough to show, for instance,
that a doctor should have known that surgery was necessary; rather the doctor
must know that surgery was necessary and then consciously disregard that
need in order to be held deliberately indifferent.” In Johnson, the Seventh
Circuit was evaluating the district court’s grant of summary judgment and the
entry of judgment after a bench trial. Id. at 1003. That reasoning is not
applicable at the motion to dismiss stage.

4

D.

Statute of Limitations

Finally, Richter argues the plaintiff’s medical malpractice claims are
barred by Wisconsin’s three-year statute of limitations. See Wis. Stat.
§893.55(1m). Richter last treated the plaintiff on June 3, 2011, and the plaintiff
did not file his complaint in this case until July 21, 2014, more than three
years later.
The plaintiff suggests that the institution delayed in filing the plaintiff’s
complaint because it had 118 pages of exhibits attached. He implies, but does
not explicitly state, that it otherwise would have been timely.
More important, though, the statute of limitations is tolled while a
prisoner pursues his administrative remedies. Johnson v. Rivera, 272 F.3d 519
(7th Cir. 2002). The court does not have enough information from the
complaint and its exhibits to determine how long it took the plaintiff to exhaust
his administrative remedies. Accordingly, the court cannot conclude that the
plaintiff filed this case after the statute of limitations had run.
Further, even if the court were to dismiss the plaintiff’s federal claim
against Richter (which it will not do at this stage), the court would retain
jurisdiction over the plaintiff’s state law medical negligence claim because the
statute of limitations has now run for the plaintiff to bring his claim in state
court. See Davis v. Cook County, 534 F.3d 650, 654 (7th Cir. 2008).
II.

PLAINTIFF’S MOTION FOR PHYSICAL EXAMINATION
On November 16, 2015, the plaintiff filed a motion asking for a physical

examination under Federal Rule of Civil Procedure 35(a). Dkt. No. 24. He wants
5

complete opthalmology, dermatology, and neurology examinations, presumably
with the intention of using the results of these examinations to prosecute his
claims. Fed. R. Civ. P. Rule 35(a), however, allows the court to order a plaintiff
to submit to an examination at the request of an opposing party. “The rule is
not intended to cover a situation such as the one here, in which plaintiff wishes
an examination of himself. Obtaining evidence to prove his case is plaintiff’s
responsibility, not the defendants’.” Browne v. Schrubbe, No. 10-CV-129-BBC,
2010 WL 3666993, at *10 (W.D. Wis. Sept. 15, 2010); see also Kendrick v.
Frank, 05-C-0976, 2007 WL 2207907, at *2 (E.D. Wis. July 30, 2007). The
court will deny the plaintiff’s motion.
III.

CONCLUSION
The court DENIES defendant James Richter’s motion to dismiss. Dkt No.

17. The court ORDERS defendant James Richter to file an answer to the
plaintiff’s complaint within twenty-one (21) days of the date of this order. Once
he has filed his answer, the court will issue a scheduling order.
The court DENIES the plaintiff’s motion for physical examination. Dkt.
No. 24.
Dated in Milwaukee, Wisconsin this 11th day of February, 2016.

6