Gillispie v. Correct Care Solutions LLC et al

Filing 13

ORDER signed by Judge Pamela Pepper on 9/11/2017. 2 Plaintiff's MOTION for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Agency having custody of plaintiff to collect $282.77 balance of filing fee from his prison trust ac count in accordance with 28 USC §1915(b)(2). Defendant Jessica Jones DISMISSED. US Marshal to serve copy of complaint and this order on defendants Gossage, Stephens, Bolton, Fatoki and Correct Care Solutions pursuant to FRCP 4; those defendants to file responsive pleading. (cc: all counsel, via mail to Kevin Gillespie and Warden at Green Bay Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
KEVIN EUGENE GILLISPIE,
Plaintiff,
v.
Case No. 16-cv-1592-pp
CORRECT CARE SOLUTIONS,
JOHN GOSSAGE,
JOHN DOE, BCJ ADMINISTRATOR,
LIEUTENANT STEPHENS,
OFFICER BOLTON,
JESSICA JONES,
DR. FATOKI,
EB NURSE PRACTITIONER,
JANE DOE, NURSE, and
JOHN DOE, NURSE,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING PLAINTIFF’S COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff, a pro se prisoner, filed a civil rights case under 42 U.S.C.
§1983, alleging that the defendants violated his Eighth Amendment rights at
the Brown County Jail. Dkt. No. 1. The case comes before the court on the
plaintiff’s motion to proceed without prepayment of the filing fee and for
screening of the plaintiff’s complaint.
I.

MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE
The Prison Litigation Reform Act applies to this case, because the

plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
law allows a court to give an incarcerated plaintiff the ability to proceed with
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his lawsuit without pre-paying the civil 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 December 14, 2016, the court assessed an initial partial filing fee of
$67.23. Dkt. No. 7. The plaintiff paid that amount on January 18, 2017.
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 THE PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The Prison Litigation Reform Act (“PLRA”) applies to this action because
the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. The
PLRA requires courts to screen any complaint brought by inmates seeking relief
against a governmental entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). The court may dismiss a case, or part of it, 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
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entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). The complaint need not plead specific
facts, and need only provide “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)). “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. 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 put 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 support 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)).
To state a claim for relief under 42 U.S.C. §1983, the plaintiff must allege
that the defendants: 1) deprived him of a right secured by the Constitution or
laws of the United States; and 2) acted under color of state law. Buchanan3

Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer
v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v.
Toledo, 446 U.S. 635, 640 (1980).
B.

Facts Alleged in the Complaint

The plaintiff has Type 2 diabetes and is insulin-dependent. Dkt. No. 1 at
3. He arrived at the Brown County Jail (“BCJ”) sometime in March 2016, and
since then, he has “constantly” received expired insulin. Id. He notified and
warned BCJ medical staff multiple times that the insulin was expired, but they
did nothing. Id.
On or around March 20, 2016, the plaintiff started having “flare ups” of
boils, sores and infections all over his body. Id. Again, he notified BCJ medical
staff of his condition. Id. He also filed multiple requests for medical care. Id.
BCJ medical staff did not examine him for three to four weeks; when they
finally did, Dr. Fatoki refused to diagnose or test the plaintiff for MRSA, even
though the plaintiff had clear signs of the infection. Id.
Beginning on November 9, 2016, the plaintiff notified BCJ medical staff
and unit officers of a severe infection on his left hand that was progressing
onto his arm. Id. The plaintiff did not receive medical attention for the infection
until 7 p.m. on November 17, 2016—a week later. Id. Brown County Sheriff
John Gossage then took the plaintiff to the hospital, where the plaintiff had to
have immediate surgery to remove the infection. Id.
The plaintiff seeks monetary damages and injunctive relief. Id. at 5.

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C.

Legal Analysis of Alleged Facts

The Eighth Amendment imposes a duty on prison officials to provide
humane conditions of confinement by ensuring that inmates receive adequate
food, clothing, shelter and medical care. Farmer v. Brennan, 511 U.S. 825, 832
(1994). To state a claim under the Eighth Amendment, a plaintiff must allege
that jail officials were “deliberately indifferent” to a substantial risk of serious
harm to inmate health or safety. Id. at 834.
Jail officials act with deliberate indifference when they know of a
substantial risk of serious harm and either act or fail to act in disregard of that
risk. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). 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.” Id. (quoting Greeno v.
Daley, 414 F.3d 645, 653 (7th Cir. 2005).
1.

The Plaintiff’s “Individual Capacity” Claims

Liability under §1983 is predicated on a defendant’s personal involvement in
the constitutional deprivation. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995). A state official “must know about the conduct and facilitate it, approve
it, condone it, or turn a blind eye.” Id. (quoting Jones v. City of Chicago, 856
F.2d 985, 992 (7th Cir. 1988).
According to the complaint, the plaintiff notified “medical staff” that he
had boils, sores and infections all over his body because he was receiving
expired insulin. Medical staff delayed examination of his condition for several
weeks, making his condition worse. When Dr. Fatoki did eventually examine
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the plaintiff, he refused to test or diagnose for MRSA even though the plaintiff
was showing clear signs of the infection. The plaintiff finally received treatment
in November 2016, and he needed emergency surgery on his left hand and arm
to remove the infection. Because the plaintiff is insulin-dependent, he could
have suffered other, more serious complications from receiving expired insulin.
The court finds that the plaintiff has alleged sufficient facts to allow him to
proceed with an Eighth Amendment deliberate indifference claim against the
following BCJ medical staff members: EB Nurse Practitioner, Jane Doe Nurse,
and John Doe Nurse, as well as against Dr. Fatoki.
In November 2016, the plaintiff notified “unit officers” of a severe
infection on his left hand that was progressing onto his arm. They too failed to
act and provide him with medical care. As discussed above, the plaintiff needed
surgery to remove the infection from his hand and arm. The court finds that
the plaintiff has alleged sufficient facts to allow him to proceed with an Eighth
Amendment deliberate indifference claim against unit officers Lieutenant
Stephens and Officer Bolton.
In reviewing the plaintiff’s complaint, the court was unable to determine
how Jessica Jones may have been involved in the incidents the plaintiff
described. The complaint does not explain whether Ms. Jones is medical staff
or a unit officer, or whether she is employed in some other capacity by the
Brown County Jail. The court will dismiss defendant Jessica Jones as a
defendant for lack of personal involvement.

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1. The Plaintiff’s “Official Capacity” Claims
“Under § 1983, there is no respondeat superior liability.” Perkins v.
Lawson, 312 F.3d 872, 875 (7th Cir. 2002). In order to prevail on an official
capacity suit against the sheriff or other jail administrators, a plaintiff must
show that an official policy or custom caused his injury. Id. A plaintiff may
demonstrate an official policy through providing proof of: (1) an express policy
that causes a constitutional deprivation when enforced; (2) a widespread
practice that is so permanent and well-settled that it constitutes a custom or
practice; or (3) an allegation that the constitutional injury was caused by a
person with final policymaking authority. Estate of Sims ex rel Sims v. C’nty of
Bureau, 506 F.3d 509, 515 (7th Cir. 2007); see Monell v. New York City Dept.
of Soc. Servs., 436 U.S. 658, 692 (1978); see also Calhoun v. Ramsey, 408 F.3d
375, 379 (7th Cir. 2005).
The complaint implies that the Brown County Jail, through its medical
care contractor Correct Care Solutions, has been supplying expired insulin to
its inmates for at least eight months. The plaintiff, therefore, may proceed with
an Eighth Amendment claim that Brown County Sheriff John Gossage and
Brown County Jail Administrator John Doe, both of whom have final
policymaking authority over the jail, have engaged in a practice of providing
expired insulin that violates the plaintiff’s constitutional right to adequate
medical care, and/or that they failed to adequately train medical staff
regarding the plaintiff’s constitutional right to adequate medical care.

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3.

The Plaintiff’s Claims Against a Private Corporation

Finally, a private corporation providing essential government services is
liable under §1983 for constitutional violations caused by an unconstitutional
policy or custom of the corporation. See Shields v. Ill. Dep’t of Corr., 746 F.3d
782, 789 (7th Cir. 2014). The plaintiff must allege a “policy, custom, or practice
of deliberate indifference to medical needs, or a series of bad acts that together
raise the inference of such a policy.” Id. at 796. As discussed above, the
plaintiff alleges that Correct Care Solutions has a practice of supplying Brown
County Jail with expired insulin. Therefore, the court will allow him to proceed
with an Eighth Amendment claim that Correct Care Solutions has a practice of
providing expired insulin that violates the plaintiff’s constitutional right to
adequate medical care, and/or that they failed to adequately train medical staff
regarding the plaintiff’s constitutional right to adequate medical care.
III.

CONCLUSION

The court GRANTS the plaintiff’s motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2. The court ORDERS the agency having
custody of the plaintiff to collect from the plaintiff's prison trust account the
$282.77 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 Court each time the amount in the 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.

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The court will send a copy of this order to the officer in charge of the
agency where the inmate is confined.
The court ORDERS that Jessica Jones is DISMISSED as a defendant.
The court ORDERS the United States Marshal to serve a copy of the
complaint and this order on John Gossage, Lieutenant Stephens, Officer
Bolton, Dr. Fatoki, and Correct Care Solutions pursuant to Federal Rule of
Civil Procedure 4. The court advises the plaintiff that Congress requires the
U.S. Marshals Service to charge for making or attempting such service. 28
U.S.C. § 1921(a). The current fee for waiver-of-service packages is $8.00 per
item mailed. The full fee schedule is provided at 28 C.F.R. §§ 0.114(a)(2), (a)(3).
Although Congress requires the court to order service by the U.S. Marshals
Service precisely because in forma pauperis plaintiffs are indigent, it has not
made any provision for these fees to be waived, either by the court or by the
U.S. Marshals Service.
The court ORDERS John Gossage, Lieutenant Stephens, Officer Bolton,
Dr. Fatoki, and Correct Care Solutions to file a responsive pleading to the
complaint.
The court further ORDERS the plaintiff 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

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PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S
CHAMBERS. It will only delay the processing of the case. Because each filing
will be electronically scanned and entered on the docket upon receipt by the
clerk, the plaintiff does not need to mail copies to the defendants. All
defendants will be served electronically through the court’s electronic case
filing system. The plaintiff should, however, retain a personal copy of each
document he files with the court.
The court advises the plaintiff that if he does not file pleadings or other
documents by the deadlines the court sets, the court could dismiss his case for
failure to diligently prosecute it. The parties must notify the clerk of court of
any change of address. Failure to do so could result in orders or other
information not being timely delivered, thus affecting the legal rights of the
parties.
Dated in Milwaukee, Wisconsin this 11th day of September 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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