Adames v. Bikowski et al

Filing 26

ORDER signed by Judge J.P. Stadtmueller on 2/23/2017 regarding 24 Plaintiff's Second Amended Complaint. Plaintiff's motion for leave to file Second Amended Complaint (Docket #24-1) GRANTED. Waupun Correctional Institution Healthcare Department DISMISSED from action. Plaintiff's Second Amended Complaint and this Order to be sent electronically to Wisconsin DOJ for service on Defendant Gwendolyn A. Vick. All Defendants to file responsive pleading to Plaintiff's Second Amended Complaint. (cc: all counsel, via mail to Jose A. Adames and Warden at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JOSE A. ADAMES,
Plaintiff,
v.

Case No. 16-CV-1010-JPS

ROBERT J. BIKOWSKI, JONATHAN S.
PAWLYK, BRAD D. BADE, NATHAN E.
HAYNES, JODI L. TRITT, and
GWENDOLYN A. VICK,
Defendants.

ORDER

Plaintiff, an inmate at Waupun Correctional Institution (“Waupun”),
alleges that after he attempted suicide in his cell on January 31, 2016, officers
caused severe injuries to his head, neck, back, shoulders, and wrists while
they strip-searched him and escorted him to suicide observation. On
November 9, 2016, the Court screened Plaintiff’s original complaint and
allowed Plaintiff to proceed on an excessive force claim against those officers.
(Docket #8). Plaintiff filed his first amended complaint on December 19, 2016.
(Docket #20). The Court screened that complaint and found that Plaintiff
could continue to proceed on his excessive force claim. (Docket #21 at 3).
However, the Court did not allow him to proceed on a claim for deliberate
indifference to his serious medical needs arising from allegedly inadequate
and delayed medical care after the excessive force incident. Id. at 4–5. The
Court advised that if Plaintiff wanted to attempt to state such a claim, he
would need to amend his complaint again. Id.
On February 17, 2017, Plaintiff filed a motion for leave to file a second
amended complaint. (Docket #24-1). His proposed second amended
complaint was attached to the motion. (Docket #24). The Court will grant

Plaintiff’s motion for leave to amend the complaint. See Fed. R. Civ. P. 15(a);
Foman v. Davis, 371 U.S. 178, 182 (1962). The Court now turns to screening the
second amended complaint, as it must under the Prison Litigation Reform
Act. 28 U.S.C. § 1915A(a). The Court 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. §
1915A(b). All of the standards cited in the first screening order remain
applicable here. (Docket #8 at 1–3).
Plaintiff’s allegations in his second amended complaint are nearly
identical to the allegations in the first amended complaint. As a result, the
Court will assume familiarity with its prior screening orders and address only
Plaintiff’s new allegations. See (Docket #8 and #21). New to the second
amended complaint are more detailed allegations regarding Plaintiff’s
allegedly inadequate and delayed medical treatment after the January 31,
2016 excessive force incident. Plaintiff asserts that he was never taken to a
hospital after the incident and that “it took me over 20 hours just to be seen
by a nurse.” (Docket #24 at 5). He states that he went to sick call on February
1, 2016, and was seen by a nurse, Gwendolyn A. Vick (“Vick”). Id. She
prescribed ibuprofen for his pain and told Plaintiff that she had scheduled
him to see a “health care provider.” Id.
Plaintiff alleges that he did not immediately receive the prescribed
medicine. Id. He wrote to Waupun healthcare staff on February 7, 2016,
informing them that he had never received the ibuprofen. Id. He received the
medication sometime that day. Id. at 1. He wrote to them again on February
11 and 18, 2016, complaining that he was experiencing severe pain and that
the ibuprofen was “not helping at all.” Id. at 5–6. On February 20, 2016, a
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nurse responded to the February 18 request for care, stating that Plaintiff had
an appointment with a doctor “coming up.” Id. at 6. Plaintiff submitted two
additional healthcare requests, one on February 22 and another on March 7,
2016, asking when the doctor’s appointment would occur and reiterating that
he was in extreme pain. Id. at 1, 6.
According to Plaintiff, he did not see a doctor until sometime in March
2016. Id. at 6. During this period of delay, Plaintiff claims he suffered
incredible pain. Id. He was not able to sleep because it caused too much pain
to lay down on his head, neck, or shoulders. Id. He also asserts that since the
incident, his hands fall asleep often and he cannot squeeze anything very hard
because it causes pain. Id. Plaintiff attributes his delayed and deficient
healthcare to Vick and the Waupun healthcare department generally, and
seeks to join both in a deliberate indifference claim brought pursuant to the
Eighth Amendment. See id. at 1–2, 7.1
As noted in the Court’s second screening order, to state a claim of
deliberate indifference to serious medical need, Plaintiff must allege: (1) an
objectively serious medical condition; (2) that Defendants knew of the
condition and were deliberately indifferent in treating it; and (3) this
indifference caused Plaintiff some injury. Gayton v. McCoy, 593 F.3d 610, 620
(7th Cir. 2010). “With regard to the deliberate indifference prong,” the
Seventh Circuit instructs that “[t]he official must have subjective knowledge
of the risk to the inmate’s health, and the official also must disregard that
risk.” Id. Mere negligence will not suffice. Id.

1

It is not entirely clear whether Plaintiff wants to join the Waupun healthcare
department as a defendant, see (Docket #24 at 2), but because Plaintiff does not state a claim
against the healthcare department in any event, the Court will assume that Plaintiff sought to
join it as a defendant for purposes of its analysis.

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Generously construing Plaintiff’s allegations against Vick, the Court
finds that they suffice to state a deliberate indifference claim based on the
allegedly inadequate and delayed medical care she provided for his injuries
and pain. The facts may ultimately show that Vick played only a minor role
in providing Plaintiff with care or that any error she made was at worst
negligence, but at this early stage, the Court will permit the claim against her
to proceed.
The same is not true for Plaintiff’s broader complaints against the
Waupun healthcare department. As the Court warned Plaintiff in its second
screening order, “‘public employees are responsible for their own misdeeds
but not for anyone else’s.’” (Docket #21 at 4) (quoting Burks v. Raemisch, 555
F.3d 592, 596 (7th Cir. 2009)). 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
violation.” Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996). Moreover, there is
no collective liability or respondeat superior in Section 1983 actions. See Pacelli
v. deVito, 972 F.2d 871, 877 (7th Cir. 1992).
Applying these principles, Plaintiff’s vague allegations that unnamed
individuals in the Waupun healthcare department collectively delayed his
doctor’s appointment or ignored his requests for care after February 7, 2016
do not state a claim for deliberate indifference against the healthcare
department as a whole. The healthcare department cannot be liable for any
individual’s constitutional violations simply because it employed that person.
Absent an allegation that the prison’s healthcare provider had a policy or
custom that permitted the violations to occur, it cannot not be liable under
Section 1983. See City of Okla. City v. Tuttle, 471 U.S. 808, 823 (1985). There is
no such allegation here, nor could any such inference be drawn from these
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facts, and so the second amended complaint fails to state a claim against the
Waupun healthcare department.
In sum, the Court finds that, based on Plaintiff’s second amended
complaint, he may proceed on the following claims: (1) a claim of excessive
force, in violation of the Eighth Amendment, against Defendants Tritt,
Haynes, Pawlyk, Bade, and Bikowski, arising from the events of January 31,
2016; and (2) a claim of deliberate indifference to Plaintiff’s serious medical
needs, in violation of the Eighth Amendment, against Defendant Vick for
inadequate and delayed medical care following the January 31, 2016 excessive
force incident.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to file his second
amended complaint (Docket #24-1) be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the Waupun Correctional Institution
healthcare department be and the same is hereby DISMISSED from this
action;
IT IS FURTHER ORDERED that pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s second amended complaint (Docket #24) and this order
will be electronically sent to the Wisconsin Department of Justice for service
on Defendant Gwendolyn A. Vick;
IT IS FURTHER ORDERED that all Defendants shall file a responsive
pleading to the second amended complaint;
IT IS FURTHER ORDERED that a copy of this order be sent to the
warden of the institution where the inmate is confined.

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Dated at Milwaukee, Wisconsin, this 23rd day of February, 2017.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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