Messner v. Murphy et al

Filing 7

ORDER signed by Judge Rudolph T. Randa on 6/3/2015. Defendants to file responsive pleading within 60 days of this Order. 4 Defendants' MOTION for Screening Order DENIED as moot. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STEPHEN MESSNER,
Plaintiff,
-vs-

Case No. 14-CV-1272

PATRICK MURPHY, M.D., et al.,
Defendants.

DECISION AND ORDER
Stephen Messner, a Wisconsin state prisoner who is represented by
counsel, filed a civil rights action under 42 U.S.C. § 1983, for which he has
paid the full filing fee. This matter is before the Court for screening of the
plaintiff’s complaint (ECF No. 1) and the defendant’s motion that the
Court do so (ECF No. 4). Given that federal law requires the Court to
screen the plaintiff’s complaint (28 U.S.C. § 1915A(a)), the Court will deny
the defendants’ motion as moot.
The Court must dismiss a complaint, or part of it, 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).
To state a cognizable claim under the federal notice pleading
system, a 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 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. A plaintiff must support his
legal conclusions with factual allegations. Id. If there are well-pleaded
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factual allegations, courts 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 the defendant(s): 1) deprived him of a right secured by the
Constitution or laws of the United States; and 2) acted 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 Plaintiff’s Allegations
The plaintiff is currently incarcerated at the Oshkosh Correctional
Institution (OSCI). He is suing Patrick Murphy, M.D., a doctor at OSCI,
and Corina Daul, a registered nurse at OSCI.

The plaintiff seeks

monetary damages in the amount of $100,000, plus costs and attorneys’
fees.
The plaintiff alleges he arrived at OSCI in October 2010. At that
time, the plaintiff’s medical file, which contained medical reports from the
plaintiff’s community doctors, was forwarded to OSCI. The plaintiff states
that the reports indicated that the plaintiff suffered from colitis with
incidents of bloody diarrhea.

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In October 2012, plaintiff submitted a request to be seen by a doctor
for severe pain in his stomach, side, and back. Defendant Murphy briefly
examined the plaintiff and determined the plaintiff’s pain was muscle
related.

Defendant Murphy instructed the plaintiff to seek another

appointment with him if the pain persisted or worsened.
Later that month, the plaintiff submitted another request to be seen
by Defendant Murphy because the pain had increased. Defendant Daul
scheduled an appointment but repeatedly “bumped” the plaintiff’s
appointment, despite his repeated requests to see the doctor. The plaintiff
did not see the doctor until six months later in April 2013. The plaintiff
alleges he endured pain and suffering during this six months.
In May 2013, the plaintiff had a colonoscopy that revealed the
plaintiff had chronic active colitis.

Plaintiff alleges that, despite

Defendant Murphy’s agreement with the results, Defendant Murphy
offered no treatment or pain relief. The plaintiff alleges he continued to
request relief, but he was not seen by a doctor or nurse and received no
treatment for his pain until September 2013, when he was prescribed
medication by a physician’s assistant at the University of Wisconsin
Hospital.

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Discussion
To state a claim based on deficient medical care, a plaintiff must
demonstrate two elements: 1) an objectively serious medical condition; and
2) an official’s deliberate indifference to that condition. Arnett v. Webster,
658 F.3d 742, 750 (7th Cir. 2011) (citing Johnson v. Snyder, 444 F.3d 579,
584 (7th Cir. 2006)). A medical need is considered sufficiently serious if
the inmate’s condition ‘has been diagnosed by a physician as mandating
treatment or . . . is so obvious that even a lay person would perceive the
need for a doctor’s attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir.
2011) (quoting Greeno v. Daley, 414 F.3d 645, 653 [7th Cir. 2005]). “A
medical condition need not be life-threatening to be serious; rather, it
could be a condition that would result in further significant injury or
unnecessary and wanton infliction of pain if not treated.” Roe, 631 F.3d at
857 (quoting Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010)).
The Supreme Court has held that to prove a defendant acted with
“deliberate indifference,” a plaintiff must prove more than just negligence,
but does not have to prove that the defendant acted with the purpose of
harming the plaintiff or with knowledge that harm would result; it is the
equivalent of acting recklessly. Farmer v. Brennan, 511 U.S. 825, 835-36
(1994) (citations omitted).
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Based on this standard, the plaintiff has adequately plead facts to
state a claim that the defendants were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment when they
repeatedly delayed treatment for the pain he suffered in connection with
his medical condition.
The plaintiff’s complaint claims that the defendants were merely
negligent, which the Court notes above is insufficient to state a claim
under the Eight Amendment; however, “a complaint need not identify a
legal theory, and specifying an incorrect theory is not fatal.” Bartholet v.
Reishauer A.G., 953 F.2d 1073, 1078 (7th Cir. 1992); Williams v. Seniff,
342 F.3d 774, 792 (7th Cir. 2003) (citations omitted).
The plaintiff’s complaint notifies defendants of the basis of his claim,
and those allegations are sufficient to state a claim for deliberate
indifference, regardless of how the plaintiff characterizes them. It would
be pointless to require the plaintiff to amend his complaint merely to
replace the word “negligent” with “deliberately indifferent.” Complaints in
a system of notice pleading initiate the litigation, but then fall into the
background with later documents and filings refining the claims and
“supply[ing] the legal arguments that bridge the gap between facts and

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judgments.” Bartholet, 953 F.2d at 1078. Accordingly, the plaintiff may
proceed with his complaint.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT pursuant to the informal service agreement
between the Wisconsin Department of Justice and this Court, the
defendants shall file a responsive pleading to the complaint within sixty
days of receiving electronic notice of this order.
IT IS FURTHER ORDERED THAT defendants’ motion that the
Court screen the plaintiff’s complaint (ECF No. 4) is DENIED as moot.
Dated at Milwaukee, Wisconsin, this 3rd day of June, 2015.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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