Nelsen v. O'Brien et al

Filing 9

ORDER signed by Judge Pamela Pepper on 5/10/2018. 7 Plaintiff's motion for leave to proceed without prepayment of the filing fee GRANTED; plaintiff to pay $326.51 balance of filing fee as she is able. Defendants Lemmens, Listner, Schuab, WDOC Insurance Company, Walker, Burnett and Green DISMISSED. Wis. DOJ to serve copies of complaint and this order on defendant O'Brien; O'Brien to file responsive pleading within 60 days. Parties may not begin discovery until after the court enters scheduling order setting deadlines for discovery and dispositive motions. (cc: all counsel, via mail to Wendy Nelsen c/o Probation Officer Sandra Peterson, 940 Maritime Dr., Manitowoc, WI 53220)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
WENDY NELSEN,
Plaintiff,
v.

Case No. 16-cv-1679-pp

DR. KELLY O’BRIEN, WDOC INSURANCE COMPANY,
SCOTT WALKER, JOHN LISTNER, JAMES GREEN/GREER,
DR. DAVID BURNETT, NP LEMMENS, and
WARDEN DEANNE SCHAUB1,
Defendants.
______________________________________________________________________________
DECISION AND ORDER GRANTING THE PLAINTIFF’S MOTION FOR LEAVE
TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 7)
AND SCREENING THE COMPLAINT (DKT. NO. 1)
______________________________________________________________________________
The plaintiff was a Wisconsin state prisoner at the time she filed her
complaint.2 Representing herself, the plaintiff filed a complaint under 42 U.S.C.
§1983, alleging that the defendants violated her civil rights at the Taycheedah
Correctional Institution (“TCI”). Dkt. No. 1. This order resolves the plaintiff’s
motion for leave to proceed without prepayment of the filing fee and screens the
plaintiff’s complaint.
I.

MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE
FILING FEE (DKT. NO. 7)

The court has corrected the case caption to reflect that the Warden at
Taycheedah Correctional Institution at the time the plaintiff filed her complaint
was Deanne Schaub, not Carolyn Schuab as named by the plaintiff.
1

The Wisconsin Department of Corrections’ Inmate Locator web site indicates
that the plaintiff was released on extended supervision from the Robert E.
Ellsworth Correctional Center on March 27, 2018.
https://appsdoc.wi.gov/lop/detail.do.
2

1

The Prison Litigation Reform Act (“PLRA”) applies to this case, because
the plaintiff was incarcerated when she filed the complaint. 28 U.S.C. §1915.
The law allows an incarcerated plaintiff to proceed with a lawsuit in federal
court without prepaying the civil case filing fee, as long as she 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 her prisoner account. Id.
The court issued an order, requiring the plaintiff to pay an initial partial
filing fee of $23.49. Dkt. No. 5. The court received that payment from the
plaintiff on February 21, 2017. Therefore, the court will grant the plaintiff’s
motion for leave to proceed without prepayment of the filing fee.
The court allows plaintiff who are in custody to pay the balance of their
$350 filing fee over time, out of their prisoner accounts. Because the plaintiff
has been out of custody for a couple of months, the court will allow her to pay
the $326.51 balance of her filing fee as she is able.
II.

SCREENING OF THE PLAINTIFF’S COMPLAINT
A.

Standard for Screening Complaints

The PLRA 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 a case, or
part of it, if the claims alleged are “frivolous or malicious,” fail to state a claim

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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 [she] is
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 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. 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 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 well-pleaded factual
allegations “plausibly give rise to an entitlement to relief.” Id. The court gives
pro se allegations, “however inartfully pleaded,” a liberal construction. See
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Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)).
B.

Facts Alleged in the Complaint

The plaintiff was an inmate at TCI. Dkt. No. 1 at 1. Defendant Kelly
O’Brien is a doctor at TCI, id. at 2; defendant Scott Walker is governor of
Wisconsin, id. at 3; defendant WDOC Insurance Company is, according to the
plaintiff, the company that insures employees of the Wisconsin Department of
Corrections, id. at 2; defendant John Listscher3 is secretary of the Department
of Corrections (“DOC”) id., at 3; defendant David Burnett, M.D. is medical
director for the Bureau of Health Services (“BHS”), id.; defendant N.P. Lemmens
is a nurse practitioner at TCI, id.; and the complaint asserts that defendant
Deanne Schaub was the warden at TCI, id. at 4.4
In 2006, inmates at TCI brought a class action lawsuit against TCI for
insufficient medical care. Id. at 5. The plaintiff says that the case settled in
2015, and that TCI staff “cleaned up” their act only long enough to “get the
Judge Randa5 and the ACLU off its case.” Id. The plaintiff alleges that “[n]ow,
TCI is right back to wear [sic] it was in 2006 . . . .” Id.
The plaintiff refers to this defendant as “John Listner,” but the court assumes
that this is an unintentional misspelling of Secretary Litscher’s last name.
3

The plaintiff lists a “James Green,” or “James Greer” in the caption of her
complaint. Dkt. No. 1 at 1. She does not mention him anywhere else—does not
explain who he is, or how he is related to her claims. The court will not allow
the plaintiff to proceed against this person.
4

Presumably, the plaintiff is referring to United States District Judge Rudolph
T. Randa, who served on the district court for the Eastern District of Wisconsin
from 1992 until 2016.
5

4

The plaintiff alleges that she “was given flonaise,” and she says that she
was “being given Hydroxizen, 4 times a day which is an antihstimic.” Id. (The
court believes the plaintiff may be referring to FLONASE, an over-the-counter
allergy medicine, see https://www.flonase.com, and hydroxyzine, an
antihistamine, see https://www.medicinenet.com/hydroxyzine/article.htm.)
The plaintiff alleges that she has a hole in her septum—the bone and cartilage
wall that separates the two nostrils in the nose. Id. She says the hole has
tripled in size, to a quarter inch in diameter, and has caused her to lose the
abilities to smell and to taste. Id. She says that she has severe sleeping
problems—she has to breathe through her mouth because she has “constant
blood chunks being formed throughout the day and night time.” Id. She
describes how she has to blow her nose at least once an hour, which allows her
to breathe for fifteen to twenty minutes at a time. Id. She indicates that on
several occasions, when she blew her nose, blood vessels in one of her eyes
broke, turning the entire eye red for ten to fifteen days at a time. Id.
The plaintiff also says that she was on prednisone (an oral steroid, see
https://www.medicinenet.com/prednisone/article.htm) “for the last years” that
she was at Taycheedah. Id. at 6. This has caused severe mood swings, and
thinning of her skin and veins (which she indicates causes her to bruise easily,
and to blow out blood veins when IVs are required). Id. It also causes severe
acid reflux; the plaintiff says she has had to have stomach, diaphragm and
esophagus surgeries. Id. The plaintiff indicates that the acid reflux has
worsened, and that now inmates are allowed only 20-30 mg. tablets of
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Pantoprazole; she says this equals one 20-mg tablet every other day, and
caused her acid reflux to “escalate.” Id. She says she has uterine fibroids,
which required her to have a hysterectomy. Id.
The plaintiff asserts that her mouth is dry all the time, which has caused
tooth decay. Id. The plaintiff says that no one ever told her about “the health
care problems of long term steroid use;” she indicates that she feels like she
has been forced into an experiment on these effects. Id. The plaintiff also
explains that her mother is afraid that the plaintiff will die in custody. Id.
The plaintiff alleges that defendant O’Brien kept the plaintiff on constant
usage” of prednisone, as well as “usage of [corticosteroids] nasal spray.” Id. at
1. She alleges that her “severe nasal permanent damage” is defendant O’Brien’s
fault because of the constant use of the steroids. Id. The plaintiff explains that
Dr. O’Brien is leaving TCI, and that defendant Lemmens “and other N.P.” will
be taking over medical care at the institution. Id. at 7. She feels that O’Brien
betrayed her trust, and that O’Brien’s leaving and having the nurse
practitioners take over continues to betray her. Id. at 6-7.
The plaintiff seeks “restitution” and monetary damages for all the pain
and suffering she has suffered and will continue to suffer for the rest of her life.
Id. at 7.
C.

Analysis

To state a claim under 42 U.S.C. §1983, the plaintiff must allege that: 1)
she was deprived of a right secured by the Constitution or laws of the United
States; and 2) the deprivation was committed by a person or persons acting
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under color of state law. Buchanan-Moore v. County 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)).
1.

Defendant WDOC Insurance Company

One of the defendants the plaintiff has sued is WDOC Insurance
Company. The court does not know if there is a company by that name, but if
there is, it is (a) a company, not a person, and (b) a private company, not a part
of the government.
Section 1983 allows plaintiffs to sue any “person” who, “under color of”
state law, violates the plaintiff’s rights under the United States Constitution or
its laws. A corporation is not a “person,” and the Seventh Circuit Court of
Appeals has held that a private corporation—even one that “has contracted to
provide essential government services”—“cannot be held liable under §1983
unless the constitutional violation was caused by an unconstitutional policy or
custom of the corporation itself.” Shields v. Ill. Dept. of Corrections, 746 F.3d
782, 789 (7th Cir. 2014) (citing, e.g., Iskander v. Vill. of Forest Park, 690 F.2d
126, 128 (7th Cir. 1982)). The plaintiff names the WDOC Insurance Company
as a defendant, but does not allege that it did anything to her. Because she has
not alleged that the violation of her constitutional rights was committed by an
unconstitutional policy or custom of the WDOC Insurance Company, the court
must dismiss that company as a defendant.

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2.

Defendants Walker, Litscher, Burnett and Schaub

Similarly, the plaintiff names Scott Walker, John Litscher, David Burnett
and Deanne Schaub in the list of defendants, but she does not allege that any
of them directly violated her constitutional rights. She alleges that all four of
these individuals had some sort of supervisory responsibility—Walker had
responsibility for supervising the conduct of executive and ministerial officers;
Litscher had the responsibility for safely and securely administering DOC
institutions; Burnett had the responsibility for supervising those who provided
medical services to inmates at TCI; and Deanne Schaub was responsible for
the safety and care of all inmates at TCI. The plaintiff is correct on all these
points.
In order for a supervisor to be liable for violating someone’s
constitutional rights under §1983, however, that supervisor must be
“personally responsible for the deprivation of the constitutional right.”
Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (quoting
Chavez v. Ill. State Police, 251 F.3d 612, 651 (7th Cir. 2001)). To show that a
supervisor was “personally responsible” for depriving the plaintiff of a
constitutional right, the plaintiff must show that the supervisor “[knew] about
the conduct and facilitat[ed] it, approve[d] it, condone[d] it, or turn[ed] a blind
eye for fear of what [the supervisor] might see.” Id. (quoting Jones v. City of
Chi., 856 F.2d 985, 992-93 (7th Cir. 1988)).
The plaintiff has not alleged that Walker, Litscher, Burnett or Schaub
knew what medication the plaintiff was taking. She has not alleged that they
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knew about the hole in her septum, or about all of the physical problems she
was suffering. She has alleged only that they were supervisors, and were
responsible for the people who worked under them. This is not enough to prove
liability against a supervisor under §1983. The court will dismiss Walker,
Litscher, Burnett and Schaub as defendants.
3.

Defendant Kelly O’Brien

The Eighth Amendment protects prisoners from a lack of medical care
that “may result in pain and suffering which no one suggests would serve any
penological purpose.” Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015)
(quoting Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.
2009)). For a prisoner to state a claim for deficient medical care under the
Eighth Amendment, she must “allege an objectively serious medical condition
and an official’s deliberate indifference to that condition.” Id. (citing Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011)). A medical condition is serious if it
has been diagnosed by a physician as mandating treatment or is so obvious
that even a lay person would easily recognize the necessity for a doctor’s
attention. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). A prison official is
“deliberately indifferent” to such a condition when he or she “realizes that a
substantial risk of serious harm to a prisoner exists, but then disregards that
risk.” Perez, 792 F.3d at 776 (citing Farmer v. Brennan, 511 U.S. 825, 837
(1994)).
The plaintiff says a couple of times in her complaint that she is suing for
“malpractice.” The Seventh Circuit has held that “[d]eliberate indifference is not
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medical malpractice . . . .” McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013)
(quoting Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir. 2008)). Deliberate
indifference requires “more than negligence and approaches intentional
wrongdoing.” Id. at 480 (quoting Johnson v. Snyder, 444 F.3d 579, 585 (7th
Cir. 2006)). To show that a medical professional acting in his or her medical
capacity was deliberately indifferent, the plaintiff must show that the
professional’s treating decisions were “such a substantial departure from
accepted professional judgment, practice, or standards, as to demonstrate that
the person responsible actually did not base the decision on such a judgment.”
Id. at 481 (quoting Elyea, 631 F.3d at 857).
The court will not allow the plaintiff to proceed against O’Brien on a
medical malpractice claim. But the plaintiff has alleged sufficient facts to raise
a question as to whether O’Brien’s treatment of her constituted such a
substantial departure from accepted medical judgment that O’Brien didn’t base
her treating decisions on such judgment. The plaintiff describes having a hole
in her septum that grew to a quarter inch in diameter, and yet indicates that
O’Brien continued to give her the nasal spray and antihistamine. She describes
having terrible side effects from steroids, and alleges that O’Brien should have
been aware that such side effects were possible, but that she continued to give
the plaintiff Prednisone. Accepting these facts as true—as the court must at the
screening stage—the court concludes that the plaintiff has stated sufficient
facts to allow her to proceed on a deliberate indifference claim against O’Brien.

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4.

Defendant N.P. Lemmens

Finally, the plaintiff has not stated a claim against Nurse Practitioner
Lemmens. All the plaintiff says is that Lemmens is going to take over medical
care at TCI when O’Brien leaves, and that she feels that this is a betrayal. She
has not alleged that Lemmens did anything to violate her constitutional rights.
The court will dismiss Lemmens as a defendant.
III.

CONCLUSION
The court GRANTS the plaintiff’s motion for leave to proceed without

prepayment of the filing fee. Dkt. No. 7. The court ORDERS the plaintiff to pay
the $326.51 balance of her filing fee to the clerk of court as she is able. The
plaintiff should make payments payable to “Clerk, U.S. District Court.” She
should send them to Clerk of Court, United States District Court, 517 East
Wisconsin Avenue, Room 362, Milwaukee, Wisconsin 53202.
The court ORDERS that under an informal service agreement between
the Wisconsin Department of Justice and this court, copies of the plaintiff’s
complaint and this order are being electronically sent to the Wisconsin
Department of Justice for service on Dr. Kelly O’Brien. O’Brien shall file a
responsive pleading to the complaint within sixty days of receiving electronic
notice of this order.
The court ORDERS that WDOC Insurance Company, Scott Walker, John
Listner, James Green/Greer, Dr. David Burnett, N.P. Lemmens, and Deanne
Schaub are DISMISSED as defendants.

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The court ORDERS that the parties may not begin discovery until after
the court enters a scheduling order setting deadlines for discovery and
dispositive motions.
The court ORDERS that the plaintiff shall 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
PLEASE DO NOT MAIL ANYTHING DIRECTLY TO THE COURT’S CHAMBERS.
It will only delay the processing of the case. Because the clerk will electronically
scan and enter each filing on the docket upon receipt, the plaintiff need not
mail copies to the defendant. The defendant will be served electronically
through the court’s electronic case filing system. The plaintiff should retain a
personal copy of each document filed with the court.
The court advises the plaintiff that if she does not file documents or take
court-ordered actions by the deadlines the court sets, the court could dismiss
her case for failure to prosecute. 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.

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Dated in Milwaukee, Wisconsin this 10th day of May, 2018.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

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