Waloway v. Meisner et al

Filing 12

ORDER signed by Judge Rudolph T. Randa on 10/20/2015. Defendants Janice White, Lori Adams and Michael Meisner DISMISSED. Defendants Doehling and Marquardt to file responsive pleading within 60 days. (cc: all counsel, via mail to Jason Waloway)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JASON A. WALOWAY,
Plaintiff,
-vs-

Case No. 15-CV-755

MICHAEL MEISNER, et al.,
Defendants.

DECISION AND ORDER
Jason A. Waloway, a former inmate, filed an action under 42 U.S.C.
§ 1983, alleging that his civil rights were violated. On July 31, 2015, the
Court screened the plaintiff’s complaint and gave the plaintiff the
opportunity to correct identified deficiencies.

The plaintiff filed an

amended complaint on October 13, 2015,which is now before the Court for
screening.
Federal law requires that the Court screen the plaintiff’s amended
complaint.

As the Court explained in its July 31 order, a court must

dismiss a complaint if a prisoner raises 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
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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
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 is suing Michael Meisner, Lori Doehling, Janice White,
Gloria Marquardt, and Lori Adams.
The plaintiff alleges that in 2004 he was incarcerated at Columbia
Correctional Institution, where he was scheduled for surgery on his left
arm. Prior to the surgery, he was transferred to Oshkosh Correctional
Institution, where he was told he would have surgery soon. Despite these
representations, the plaintiff alleges that he was not scheduled for surgery
for years. The plaintiff made many complaints from 2005 to 2008 about
the pain he was suffering, but it was not until his family enlisted the help
of Senator Steve Kagen’s office that the surgery was scheduled.
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The plaintiff alleges that in March 2009 (post-surgery), prison
guards Kevin Houle and CO Fink re-broke his left arm.

The plaintiff

states that as a result he was in pain for years, but “they neglected to send
[him] to the hospital and never gave [him] any medical treatment.” (ECF
No. 11 at 6.)
The plaintiff alleges that from 2013 to 2015 he complained to
Doehling and Marquardt about his pain, but they failed to get him the
treatment he needed and instead “deliberately . . . hamper[ed] [his]
medical appointments.” (ECF No. 11 at 6.)
The plaintiff is seeking compensatory damages in the amount of
$3,000,000 and punitive damages in the same amount.
The plaintiff’s allegations that Doehling and Marquardt failed to
respond to his many requests for treatment of his left arm are sufficient to
state claims against these defendants for their deliberate indifferent to his
serious medical needs in violation of the Eighth Amendment.
However, the plaintiff makes no allegations against White or
Adams, so they will be dismissed. Further, with regard to Meisner, the
plaintiff states only that he “does not provide adequate qualified staff and
maintains policies that interfere with adequate medical care.” (ECF No.
11 at 7.) These conclusory allegations fail to indicate that warden Meisner
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had direct, personal involvement, as required by Gentry v. Duckworth, 65
F.3d 555, 561 (7th Cir. 1995).

Nor has the plaintiff alleged that the

violation of his constitutional rights occurred at Meisner’s direction or
with his knowledge and consent. Id. “Section 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 deprivation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir.
1996). 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).

Accordingly, Meisner will also be dismissed from this action.
Finally, the Court notes that the plaintiff includes allegations about
the untreated pain he endured from 2005 to 2008 and about his arm being
re-broken by officers in March 2009. The plaintiff does not name these
people as defendants in the caption; however, he does discuss their actions
at length in his allegations and specifically refers to them in his request
for relief, leading the Court to conclude that he intended to name them.
First, the Court cannot add defendants that the plaintiff failed to
include.

Second, even if the plaintiff had named these people as

defendants, his claims against them would be dismissed because they are

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barred by Wisconsin’s six-year statute of limitations. Wis. Stat. § 893.53;
Wudtke v. Davel, 128 F.3d 1057, 1061 (7th Cir. 1997).
As such, the plaintiff may proceed only on his Eighth Amendment
claims against Doehling and Marquardt for the deliberate indifference
they allegedly demonstrated in response to his serious medical needs.
THEREFORE, IT IS ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice and this
Court, copies of the plaintiff’s amended complaint and this order are being
electronically sent today to the Wisconsin Department of Justice for
service on Lori Doehling and Gloria Marquardt.
IT IS ALSO ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice and this
court, Lori Doehling and Gloria Marquardt shall file a responsive pleading
to the complaint within sixty days of receiving electronic notice of this
order.
Dated at Milwaukee, Wisconsin, this 20th day of October, 2015.
BY THE COURT:

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

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