Killian v. Nicholson et al
REPORT AND RECOMMENDATIONS signed by Magistrate Judge William E Duffin on 5/24/17. IT IS THEREFORE RECOMMENDED that, pursuant to an informal service agreement between the Wisconsin Department of Justice and this court, copies of Killian's co mplaint and this order be electronically sent today to the Wisconsin Department of Justice for service on defendants Birchbauch, Gonzales, Miodzik, Monroe, Delvaux, Foster, McCreedy, and Barker. IT IS FURTHER RECOMMENDED that, pursuant to the informa l service agreement between the Wisconsin Department of Justice and this court, defendants Birchbauch, Gonzales, Miodzik, Monroe, Delvaux, Foster, McCreedy, and Barker file a responsive pleading to the complaint within sixty days of receiving electro nic notice of this order. IT IS ALSO RECOMMENDED that defendant Zanon be dismissed. IT IS FURTHER RECOMMENDED that the parties not begin discovery until the court enters a scheduling order setting discovery and dispositive motion deadlines. (cc: all counsel, Jamie Killian at Waupun Correctional Institution)(mlm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JAMES A. ZANON,
W. MCCREEDY, and
Case No. 17‐CV‐465
REPORT AND RECOMMENDATION
Plaintiff Jamie Killian, who is representing himself, filed a complaint under 42
U.S.C. § 1983, alleging that the defendants were deliberately indifferent to his serious
medical needs. On April 26, 2017, the court screened Killian’s complaint and gave him
the opportunity to file an amended complaint. Killian availed himself of that
opportunity on May 18, 2017. This order screens Killian’s amended complaint.
Screening the Amended Complaint
The court is required to screen complaints, including amended 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
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. 28 U.S.C. § 1915A(b).
To state a cognizable claim under the federal notice pleading system, a plaintiff is
required to provide a “short and plain statement of the claim showing that [he] is
entitled to relief[.]” Fed. R. Civ. P. 8(a)(2). 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).
On February 12, 2014, while housed at Oshkosh Correctional Institution, Killian
underwent major foot surgery on his left foot: a bone was cut, a graph infused, six
screws and a plate were inserted, and another bone was ground down. Killian had a
second foot surgery in August 2014. The surgeries required that Killian be transported
from Oshkosh to the hospital for follow‐up appointments. These appointments
involved about four hours of travel time and up to ten hours of wait time from the time
of arrival to the end of the appointment.
On six different occasions, between February and September 2014, Killian was
transported to the hospital from Oshkosh. At the time of each of these transports,
Killian had a prescription for narcotic pain medication (Vicodin or Oxicodone). Despite
these prescriptions and despite Killian’s pleas for pain relief, none of the transport
officers (defendants Gonzales, Miodzik, Monroe, Delvaux, Birchbauch) provided Killian
with his prescribed pain medication. All of the transport officers informed Killian that
Oshkosh had changed its policy and would not allow correctional officers to administer
prescribed medications off‐site. Killian asserts that he was in extreme pain and suffered
headaches and nausea as a result of having to go up to fourteen hours without pain
Killian filed inmate complaints on February 24, July 18, and September 29, 2014,
about the transport officers’ refusal to provide him with prescribed pain relief. All three
complaints were affirmed by the inmate complaint examiner. The decisions, which state
that necessary medication should be provided to inmates during off‐site transports,
were forwarded to defendants McCreedy, Foster, and Barker, who are medical
administrators in the Health Services Unit.
The Court’s Analysis
“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.’” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 828 (7th Cir.
2009) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). To state a claim based on
deficient medical care, a plaintiff must allege two elements: (1) an objectively serious
medical condition; and (2) an official’s deliberate indifference to that condition. Arnett v.
Webster, 658 F.3d 742, 750 (7th Cir. 2011).
More specifically, “[a]llegations of refusal to provide an inmate with prescribed
medication . . . can  state an Eighth Amendment claim.” Id. at 753 (citing Wynn v.
Southward, 521 F.3d 588, 594 (7th Cir. 2001)). And while non‐medical officials are
entitled to rely on or defer to the professional judgment of medical officials on questions
of a prisoner’s medical care, non‐medical officials can be chargeable with deliberate
indifference where they have reason to believe or actually know that a prisoner is being
mistreated. Id. at 755 (citing Hayes v. Snyder, 546 F.3d 516, 525 (7th Cir. 2008)).
Killian alleges that McCreedy, Foster, and Barker instituted and/or enforced a
policy prohibiting transport officers from administering prescribed medication to
prisoners during off‐site transports and that they continued to enforce this policy after
being informed by an inmate examiner of Killian’s complaints. Based on these
allegations, Killian may proceed on an Eighth Amendment claim against McCreedy,
Foster, and Barker in both their official and individual capacities. See Hill v. Shelander,
924 F.2d 1370, 1372 (7th Cir. 1991) (explaining that an official capacity suit is
appropriate when a defendant is executing or implementing the official policy of the
government entity because such suits are a way of pleading an action against the
government entity of which the defendant is an agent).
Killian also alleges that, even though defendants Gonzales, Miodzik, Monroe,
Delvaux, and Birchbauch knew that denying Killian his prescribed narcotic pain
medication pursuant to the institution’s policy resulted in him being in excruciating
pain, they did nothing to help him obtain relief. Based on these allegations, Killian may
proceed on an Eighth Amendment claim against Gonzales, Miodzik, Monroe, Delvaux,
and Birchbauch in their individual capacities. (Because the court is allowing Killian to
proceed against McCreedy, Foster, and Barker in their official capacities, there is no
need to also allow him to proceed against these defendants in their official capacities.)
The court will not, however, allow Killian to proceed on a claim against Zanon,
the security supervisor who is responsible for the transportation of prisoners off‐site
and for the supervision of all correctional officers. Section 1983 makes public employees
liable “for their own misdeeds but not for anyone else’s.” Burks v. Raemisch, 555 F.3d
592, 596 (7th Cir.2009). There is no supervisor liability or vicarious liability under §
1983. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995). Unlike with McCreedy,
Foster, and Barker, Killian does not allege that anyone ever informed Zanon of Killian’s
complaints. Zanon cannot be liable for failing to respond to a serious medical need that
he did not know about. The court will dismiss Zanon as a defendant.
IT IS THEREFORE RECOMMENDED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this court, copies of
Killian’s complaint and this order be electronically sent today to the Wisconsin
Department of Justice for service on defendants Birchbauch, Gonzales, Miodzik,
Monroe, Delvaux, Foster, McCreedy, and Barker.
IT IS FURTHER RECOMMENDED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this court, defendants
Birchbauch, Gonzales, Miodzik, Monroe, Delvaux, Foster, McCreedy, and Barker file a
responsive pleading to the complaint within sixty days of receiving electronic notice of
IT IS ALSO RECOMMENDED that defendant Zanon be dismissed.
IT IS FURTHER RECOMMENDED that the parties not begin discovery until
the court enters a scheduling order setting discovery and dispositive motion deadlines.
Pursuant to the Prisoner E‐Filing Program, Killian submit all correspondence and
case filings to institution staff, who will scan and e‐mail documents to the Court.1 If
The Prisoner E‐Filing Program is mandatory for all inmates of Dodge Correctional
Institution, Green Bay Correctional Institution, Waupun Correctional Institution,
Wisconsin Secure Program Facility, Columbia Correctional Institution, and Oshkosh
Killian is no longer incarcerated at a Prisoner E‐Filing institution, 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 further advises Killian that failure to make a timely submission may
result in the dismissal of this action for failure to prosecute. In addition, 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
Your attention is directed to 28 U.S.C. § 636(b)(1)(B) and (C) whereby written
objections to any recommendation herein or part thereof may be filed within fourteen
days of service of this recommendation. Objections are to be filed in accordance with
the case filing procedures set forth in this order. Failure to file a timely objection with
the district court shall result in a waiver of your right to appeal.
Dated at Milwaukee, Wisconsin this 24th day of May, 2017.
WILLIAM E. DUFFIN
U.S. Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?