Davis v. Doheling

Filing 3

ORDER signed by Judge Pamela Pepper on 7/25/2017. Plaintiff may file amended complaint on or before 8/21/2017; failure to timely file may result in dismissal of the case for failure to prosecute. (cc: all counsel, via mail to Chad Davis at Redgranite Correctional Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
CHAD DAVIS,
Plaintiff,
v.

Case No. 17-cv-256-pp

LORI DOHELING,
Defendant.
______________________________________________________________________________
ORDER DIRECTING PLAINTIFF TO FILE AN AMENDED COMPLAINT
ON OR BEFORE AUGUST 21, 2017
______________________________________________________________________________
Plaintiff Chad Davis, a state prisoner, is representing himself. He filed a
complaint, alleging that the defendant was deliberately indifferent to his
serious medical need. Dkt. No. 1. The plaintiff has paid the full filing fee.
Even when a plaintiff has paid the filing fee, the law requires the court 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 must dismiss a complaint, or part of it, 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. 28 U.S.C. §1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in law
or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams,
490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895,
900 (7th Cir. 1997). The court may dismiss a claim as frivolous where it is
1

based on an indisputably meritless legal theory, or where the factual
contentions are clearly baseless. Neitzke, 490 U.S. at 327. “Malicious,”
although sometimes treated as a synonym for “frivolous,” “is more usefully
construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 110910 (7th Cir. 2003) (citations omitted).
To state a cognizable 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). It is not necessary for the
plaintiff 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 mere “labels and conclusions,”
however, 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). 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’s 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
2

they are no more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. The plaintiff must support legal conclusions by
factual allegations. Id. Second, if there are well-pleaded factual allegations, the
court must “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: 1) he was deprived of a right secured by the Constitution or laws of the
United States; and 2) the deprivation was visited upon him by a person or
persons acting 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 court is obliged to give the plaintiff’s 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)).
In his sworn complaint, the plaintiff details very clearly his severe back
pain, and his requests for treatment at Kettle Moraine Correctional Institution,
Waupun Correctional Institution, and Redgranite Correctional Institution. Dkt.
No. 1 at 2-4. The plaintiff alleges that after arriving at Redgranite, he did not
receive treatment until his family began calling and complaining about his lack
of adequate medical attention. Id. at 3. He asserts that his lower back pain has
progressed to his legs, and that his current treatments are not working. Id. at
4. He asked to see a foot specialist on numerous occasions. Id. When the
3

plaintiff finally saw a podiatrist, the doctor prescribed foot injections and soft
insoles for the plaintiff’s shoes. Id. The plaintiff received the injections, but he
was denied the insoles. Id. He also missed his follow-up appointment with the
podiatrist. Id. Although the plaintiff received one MRI that revealed “problems
with his spine,” he received no follow-up and no further MRIs or tests to
determine the cause of his severe pain. Id.
The plaintiff’s claims implicate his Eighth Amendment right to adequate
medical care. See Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (quoting
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir. 2009)
(“The Eighth Amendment safeguards the prisoner against a lack of medical
care that ‘may result in pain and suffering which no one suggests would serve
any penological purpose.’”). The only defendant the plaintiff names in the
complaint, however, is Lori Doheling, the Health Services director at
Redgranite. The plaintiff’s complaint does not describe any actions that
Doheling did or did not take, and does not refer to her other than to identify
and describe her as the defendant.
Section 1983 limits liability to public employees who are personally
responsible for a constitutional violation. Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir. 2009). For liability to attach, the individual defendant must
have caused or participated in a constitutional violation. Hildebrandt v. Illinois
Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003). With regard
to supervisors, the personal responsibility requirement is satisfied if the
constitutional deprivation occurs at the supervisor's direction or with the
4

supervisor's knowledge and consent. Id. In other words, the supervisor "must
know about the conduct and facilitate it, approve it, condone it, or turn a blind
eye." Id. (quoting Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)).
The plaintiff’s complaint does not state claim of personal involvement by
Doheling. If the plaintiff wants to pursue his claims regarding lack of treatment
for his severe back pain, he must file an amended complaint describing the
treatment he received or did not receive. He also must identify in that amended
complaint the names and/or job titles of the people to whom he made requests
for treatment. The plaintiff must file his amended complaint on or before
August 21, 2017. If the court receives an amended complaint from the
plaintiff, the court will screen it under 28 U.S.C. § 1915A. If the plaintiff does
not file an amended complaint within this time period, the court may dismiss
this case.
The amended complaint must bear the docket number assigned to this
case, and must be labeled “Amended Complaint.” An amended complaint will
supersede the prior complaint, and must be complete in itself without reference
to the original complaint. See Duda v. Bd. of Educ. of Franklin Park Pub. Sch.
Dist. No. 84, 133 F.3d 1054, 1056-57 (7th Cir. 1998). In Duda, the appellate
court emphasized that in such instances, the “prior pleading is in effect
withdrawn as to all matters not restated in the amended pleading[.]” Id. at
1057 (citation omitted).

5

The court ORDERS that if the plaintiff wishes to file an amended
complaint, he must do so in time for the court to receive it on or before August
21, 2017.
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.
The court advises the plaintiff that failure to timely file the amended
complaint, or any other documents, may result in the court dismissing the 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.
The court will send a copy of this order to the warden of the institution
where the inmate is confined.
Dated in Milwaukee, Wisconsin this 25th day of July, 2017.
BY THE COURT:
________________________________________
HON. PAMELA PEPPER
United States District Judge

6