Brown v. Duyoung et al

Filing 8

ORDER signed by Judge Pamela Pepper on 12/21/2016 GRANTING 2 Plaintiff's motion for leave to proceed in forma pauperis, SCREENING 1 Plaintiff's complaint; DISMISSING defendants Jaiman Duyoung and John DOE; DENYING 7 Plaintiff's motion to substitute judge, and DIRECTING service on the remaining defendants. (cc: all counsel; by US Mail to plaintiff) (pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
ENNIS LEE BROWN,
Plaintiff,
v.

Case No. 16-cv-1463-pp

JAIMAN DUYOUNG,
DR. RICKY SEABULL,
DR. THOMAS WILLIAMS,
JANE DOE, AND JOHN DOE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS (DKT. NO. 2), SCREENING PLAINTIFF’S
COMPLAINT (DKT. NO. 1), DISMISSING DEFENDANTS JAIMAN DUYOUNG
AND JOHN DOE, DENYING THE PLAINTIFF’S MOTION TO SUBSTITUTE
JUDGE (DKT. NO. 7), AND DIRECTING SERVICE ON THE REMAINING
DEFENDANTS
______________________________________________________________________________
The plaintiff, a Wisconsin state prisoner who is representing himself, filed
a civil rights complaint under 42 U.S.C. §1983 alleging that the defendants
violated his constitutional rights. Dkt. No. 1. This order resolves the plaintiff’s
motion for leave to proceed without prepayment of the filing fee (in forma
pauperis), screens the plaintiff’s complaint, and denies his motion for
substitution of judge (Dkt. No. 7).
I.

IN FORMA PAUPERIS STATUS
The Prison Litigation Reform Act applies to this case because the plaintiff

is incarcerated. 28 U.S.C. §1915. The law allows a court to give an incarcerated
plaintiff the ability to proceed with his lawsuit without pre-paying the civil
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case-filing fee, as long as he meets certain conditions. Id. One of those
conditions is a requirement that the plaintiff pay an initial partial filing fee. 28
U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court
may allow the plaintiff to pay the balance of the $350 filing fee over time,
through deductions from his prisoner account. Id.
On November 7, 2016, the court assessed an initial partial filing fee of
$7.00. Dkt. No. 5. The plaintiff paid that amount on November 17, 2016.
Therefore, the court will grant the plaintiff’s motion for leave to proceed without
prepayment of the filling fee and will allow the plaintiff to pay the balance of the
$350.00 filing fee over time from his prisoner account, as described at the end
of this order.
II.

SCREENING OF PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The Prison Litigation Reform Act requires federal courts to 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
may dismiss an action or portion thereof if the claims alleged are “frivolous or
malicious,” fail to state a claim upon which relief may be granted, or seek
monetary relief from a defendant who is immune from such relief. 28 U.S.C.
§1915(e)(2)(B).
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). The complaint need not plead specific
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facts, and need only provide “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)). “Labels and
conclusions” or a “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).
The factual content of the complaint must allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Indeed, allegations must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must
state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.
Federal courts follow the two-step analysis set forth in Twombly to
determine whether a complaint states a claim. Id. at 679. First, the court
determines whether the plaintiff’s legal conclusions are supported by factual
allegations. Id. Legal conclusions not supported by facts “are not entitled to
the assumption of truth.” Id. Second, the court determines whether the wellpleaded factual allegations “plausibly give rise to an entitlement to relief.” Id.
The court gives pro se allegations, “however inartfully pleaded,” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).

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B.

Facts Alleged in the Complaint

The plaintiff alleges that on October 29, 2013, while incarcerated at the
Dodge Correctional Institution, he tested positive for “MRSA.”1 Dkt. No. 1 at 2.
Staff isolated the plaintiff and gave him medicine, and the swelling went down.
Id.
On December 25, 2013, the plaintiff noticed a large knot under his left
armpit. Id. He submitted several Health Service Requests to get it checked. Id.
On December 31, 2013, the plaintiff received a response directing him “to
inform unit officer if any drainage occurs.” Id. at 3. Health Service Unit staff did
not see the plaintiff at that time. Id. The plaintiff alleges that later, he was
diagnosed with MRSA a second time. Id. He also alleges that, “[i]t appeared that
Dr. Williams had failed to correct or heal the infection.” Id.
After the second diagnosis, the plaintiff went to the Health Services Unit
so that the bump could be lanced and drained. Id. However, instead of lancing
and draining the bump, Dr. Seabull “performed surgery” to remove the
infection. Id. Dr. Seabull allegedly performed the surgery “under false pretense
and misrepresentation” because the plaintiff had been told that he would just
lance the bump. Id. In addition, Dr. Seabull, who cut deep into the plaintiff’s

 “MRSA” is that abbreviation for methicillin-resistant Staphylococcus aureus or
multi-drug-resistant Staphylococcus aureus. Stedman’s Medical Dictionary
562480. MRSA is “[a] common species found especially on nasal mucous
membrane and skin (hair follicles); bacterial species that produces exotoxins
including those that cause toxic shock syndrome, with resulting skin rash, and
renal, hepatic, and central nervous system disease, and an enterotoxin
associated with food poisoning[.]” Stedman’s Medical Dictionary 846040. 
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armpit to remove the infected area, performed the surgery without medication
to dull the pain. Id. The plaintiff alleges that Nurse Jane Doe maliciously
misled the plaintiff into signing a release form. Id.
For relief, the plaintiff requests compensatory and punitive damages. Id.
at 4.
C.

Discussion

To state an Eighth Amendment claim for the denial of medical care, an
inmate’s complaint must allege both an objectively serious medical condition
and an official’s deliberate indifference to that condition. See Farmer v.
Brennan, 511 U.S. 825, 834 (1994); Arnett v. Webster, 658 F.3d 742, 750 (7th
Cir. 2011). A medical condition is sufficiently serious if the failure to treat the
condition could result in the unnecessary and wanton infliction of pain, and
either the condition has been diagnosed by a physician as mandating
treatment or the need for treatment would be obvious to a layperson. See
Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012); Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011); Gutierrez v. Peters, 111 F.3d 1364, 1373–74 (7th Cir.
1997). A plaintiff can prove deliberate indifference by showing that a prison
official knows of and disregards a substantial risk to an inmate. See Arnett,
658 F.3d at 751.
The plaintiff has alleged that his MRSA, which he contracted twice and
which necessitated surgery, is a serious medical need. See Roe, 631 F.3d at
857.

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With regard to Dr. Williams, the plaintiff alleges that Dr. Williams “failed
to correct or heal the infection.” It appears that the plaintiff blames Dr.
Williams because the plaintiff contracted MRSA a second time. But the plaintiff
also alleges that after the first infection, he received treatment, and the swelling
went down. Perhaps the plaintiff blames Dr. Williams because he was forced to
submit several Health Service Requests, and then, following the second flareup, he received direction to notify staff if drainage occurred, instead of actually
seeing medical staff. Either way, the court cannot identify a plausible claim
against Dr. Williams based on the plaintiff’s allegations. The court will allow
the plaintiff to file an amended complaint clarifying his allegations against Dr.
Williams. If he does, the court will review the allegations to determine if the
plaintiff’s allegations state a claim against Dr. Williams.
The plaintiff alleges that Dr. Seabull performed surgery by cutting deep
into his armpit to remove his lump, without giving him medicine to dull the
pain. The plaintiff does not claim that Dr. Seabull failed to treat the MRSA –
the plaintiff apparently received treatment when Dr. Seabull removed the lump.
Rather, the plaintiff challenges the manner in which Dr. Seabull treated him.
The Seventh Circuit discussed this distinction in Snipes v. DeTella, 95 F.3d
586, 591 (7th Cir. 1996), where a prisoner challenged a doctor’s removal of his
toenail without anesthesia. In that case, the court of appeals determined that
the doctor’s refusal to give anesthetic was part of the overall procedure of
removing the toenail, not a separate claim. Id. The prisoner’s desire for a local
anesthetic was not a separable medical need under the Eighth Amendment. Id.
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The Snipes court also stated, however, that “[o]bviously major surgery cannot
be performed without appropriate anesthetic.” Id.
Here, although it is not clear whether Dr. Seabull performed “major
surgery” on the plaintiff, the surgery that he did perform, which involved
cutting deeply into the plaintiff’s armpit to remove a lump, is more invasive
than removing a toenail. While the court might characterize both procedures as
painful, cutting into the skin for a surgery distinguishes the facts of this case
from Snipes. Accordingly, the court will, at this early stage, allow the plaintiff
to proceed on an Eighth Amendment claim based on his allegation that Dr.
Seabull performed surgery without medicine to dull the pain. See Walker v.
Benjamin, 293 F.3d 1030, 1039-40 (7th Cir. 2002).
Finally, the plaintiff claims that he did not consent to the surgery. At this
stage, the court will allow the plaintiff to proceed against Dr. Seabull and Nurse
Jane Doe on a Fourth Amendment claim based on allegations that Dr. Seabull
performed the surgery “under false pretense and misrepresentation,” and that
Nurse Jane forced the plaintiff into signing a release. See King v. McCarty, 781
F.3d 889, 900 (7th Cir. 2015).
The complaint does not contain any allegations against the remaining
defendants, Dr. Duyoung and John Doe. Therefore, the court will dismiss these
defendants.
III.

MOTION TO SUBSTITUTE JUDGE
The plaintiff has filed a motion for substitution of judge. Dkt. No. 7. He

states that he does not believe he will receive a fair trial and unbiased Decision
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from Judge Pepper. Id. The plaintiff lists four prior cases he has filed--Brown v.
Hicks, Case No. 15-cv-509-PP (E.D. Wis.); Brown v. Garth-Dickens, et al., Case
No. 16-cv-241; Case No. 16-cv-149 (the court is not familiar with this case; the
docket does not reflect that the plaintiff has a case with that number in this
court); and Brown v. Milwaukee Cnty. Public Defenders Office, Case No. 16-cv632-PP (E.D. Wis.), and states that Judge Pepper has presided over all of them.
He argues that all four of those cases are on appeal. The plaintiff argues that
Judge Pepper is biased against him because of the number of cases he has
filed. He also argues that the fact that five of the plaintiff’s cases have been
assigned to the same judge calls into question Judge Pepper’s integrity. Id.
The plaintiff has filed a similar motion in other cases. In its decision in
Brown v. Garth-Dickens, et al., Case No. 16-cv-241-pp, Dkt. No. 48, the court
opined that the plaintiff had confused the Wisconsin state court process with
the procedures in federal court. Under Wis. Stat. §801.58, a party in a civil
case in a Wisconsin circuit court may file a written request for substitution of a
new judge, and if the assigned judge grants the motion, the clerk refers the
case to the chief judge for assignment to a new judge. There is no similar
process or statute in federal court. In federal court, if a party does not like the
judge assigned to his case, he has only one option—to ask the judge to recuse
herself under 18 U.S.C. §455. Section 455 lays out specified grounds that the
judge must consider in deciding whether to recuse herself. Because there is no
federal substitution procedure, the court must interpret the plaintiff’s motion
as a motion asking Judge Pepper to recuse herself.
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Section 455(a) of Title 28 of the United States Code requires a federal
judge to “disqualify [her]self in any proceedings in which [her] impartiality
might reasonably be questioned.” “[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994).
The plaintiff’s motion alleges that Judge Pepper cannot be fair or
unbiased toward him because five of his pending cases were assigned to her.
First, the court notes that only four of the plaintiff’s cases have been assigned
to her (including this current one). Second, Judge Pepper did not assign the
plaintiff’s cases; the clerk’s office did. The Eastern District of Wisconsin has a
policy, put into place before Judge Pepper joined the court, requiring that when
a pro se plaintiff with an active case files a second case (or a third or fourth)
during the pendency of the first case, all subsequent cases are assigned to the
same judge. This policy is designed to prevent plaintiffs from “judge
shopping”—filing their case in front of one judge and then, if that judge rules
against them, filing the same case in front of a different judge in the hope of
obtaining a better result. The plaintiff’s cases were assigned to Judge Pepper
under this policy.
Further, the fact that the plaintiff has filed four pending cases does not
demonstrate that Judge Pepper is biased against him. It is not unusual for selfrepresented plaintiffs to file multiple cases; Judge Pepper has a number of
plaintiffs who have multiple complaints pending at the same time. Judge
Pepper considers each of those complaints, and each claim in each of the
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complaints, separately, and does not punish a plaintiff for filing more than one
complaint. The court will deny the plaintiff’s request for disqualification under
§455.
IV.

CONCLUSION
The court ORDERS that the plaintiff's motion for leave to proceed

without prepayment of the filing fee (in forma pauperis) is GRANTED. Dkt. No.
2.
The court DISMISSES defendants Duyoung and John Doe.
The court DENIES the plaintiff’s motion to substitute judge. Dkt. No. 7.
The court further 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 state defendants.
The court also ORDERS 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.
The court further ORDERS that the Secretary of the Wisconsin
Department of Corrections or his designee shall collect from the plaintiff’s
prison trust account the $343.00 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
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account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). The payments
shall be clearly identified by the case name and number assigned to this
action.
The court will send copies of this order to the warden of the institution
where the plaintiff is confined.
The court further 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 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 failure to make a timely submission
may result in the dismissal of this action for failure to prosecute. The parties
must notify the Clerk of Court of any change of address. Failure to do so could

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result in orders or other information not being timely delivered, thus affecting
the legal rights of the parties.
Dated in Milwaukee, Wisconsin this 21st day of December, 2016.

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