West v. Doehling et al
ORDER signed by Judge J.P. Stadtmueller on 11/30/2017: DISMISSING CASE with prejudice pursuant to 28 U.S.C.§§ 1915(e)(2)(B) and 1915A(b)(1) for failure to state a claim; DIRECTING Clerk of Court to document that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g); and CERTIFYING that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) unless Plaintiff offers bona fide arguments supporting his appeal. (cc: all counsel, via mail to Alex Omar West and Warden at Redgranite Correctional Institution)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALEX OMAR WEST,
Case No. 17-CV-1034-JPS
THOMAS GROSSMAN, and
DR. MARY SAUVEY,
Plaintiff, a Wisconsin state prisoner who is proceeding pro se, filed a
complaint alleging that Defendants violated the Eighth Amendment by
acting with deliberate indifference to his serious medical needs. (Docket
#1). On September 20, 2017, Magistrate Judge William E. Duffin screened
the complaint and determined that Plaintiff did not provide enough facts
to state a claim for relief. (Docket #8). Specifically, Magistrate Duffin noted
that critical information was lacking regarding: (1) when Plaintiff’s injury
occurred; (2) what Defendants Lori Doehling (“Doehling”), Holly
Gunderson (“Gunderson”), and Dr. Thomas Grossman (“Grossman”) did
(or failed to do); and (3) what Defendant Dr. Mary Sauvey (“Sauvey”) did
to violate his constitutional rights apart from denying his request for
surgery by an off-site doctor. Id. at 5–6. The magistrate directed Plaintiff to
file an amended complaint addressing these deficiencies. Id.
On November 9, 2017, Plaintiff filed an amended complaint.
(Docket #11). This matter was thereafter reassigned to this Court for
screening the amended complaint. Because the amended complaint
largely reiterates the allegations from his original complaint and provides
no new, relevant details, the Court will dismiss this case for failure to state
a claim. The Court will briefly explain its decision below.
In the amended complaint, as in the original, Plaintiff reports that
he heard a snap in his arm while curling weights on an unidentified date.
(Docket #11 at 3). He experienced severe pain immediately and reported
his injury to “health services staff.” Id. at 3–4. The “on-call nurse” (who is
not a defendant in this case) told Plaintiff that she did not want to disturb
the doctor on a holiday weekend. Id. at 4. Instead, she gave him an ice bag
and ibuprofen. Id.
On July 5 and July 7 of some unidentified year, Sauvey examined
Plaintiff. Id. Plaintiff requested an off-site doctor, an MRI, surgery, or more
powerful pain medication, but Sauvey denied the requests. Id. at 4.
Between July 2016 and October 2017, Plaintiff “continued to complain” to
Doehling, Gunderson, and Grossman about wanting different treatment
for the pain in his arm. Id. Defendants still have not scheduled Plaintiff for
a surgery consultation. Id.
For an Eighth Amendment claim of deliberate indifference to a
serious medical need, the plaintiff must prove: (1) an objectively serious
medical condition; (2) that the defendant knew of the condition and was
deliberately indifferent in treating it; and (3) this indifference caused the
plaintiff some injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
The deliberate indifference inquiry has two components. “The official
must have subjective knowledge of the risk to the inmate’s health, and the
official also must disregard that risk.” Id. Even if an official is aware of the
risk to the inmate’s health, “he is free from liability if he ‘responded
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reasonably to the risk, even if the harm ultimately was not averted.’” Id.
(quoting Farmer v. Brennan, 511 U.S. 825, 843 (1994)).
Negligence cannot support a claim of deliberate indifference, nor is
medical malpractice a constitutional violation. Estelle v. Gamble, 429 U.S.
97, 105–06 (1976); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011). The
question is not whether the plaintiff believes some other course of
treatment would have been better. Snipes v. DeTella, 95 F.3d 586, 591 (7th
Cir. 1996). Instead, he must prove that the defendant’s treatment decisions
were “such a substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person responsible did
not base the decision on such a judgment.” Estate of Cole by Pardue v.
Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996); Walker v. Zunker, 30 F. App’x
625, 628 (7th Cir. 2002) (“Mere dissatisfaction with a particular course of
treatment, or even malpractice, does not amount to deliberate
A medical need is 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.”
Gutierrez v. Peters, 111 F.3d 1364, 1372 (7th Cir. 1997). “A medical
condition need not be life-threatening to be serious; rather, it could be a
condition that would result in further significant injury or unnecessary
and wanton infliction of pain if not treated.” Gayton, 593 F.3d at 620.
However, “refus[al] to dispense bromides for the sniffles or minor aches
and pains or a tiny scratch or a mild headache or minor fatigue—the sorts
of ailments for which many people who are not in prison do not seek
medical attention—does not by its refusal violate the Constitution.”
Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996). Likewise, a delay in
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treatment is only actionable if it aggravated his condition or caused
unnecessary pain. See Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007).
As Magistrate Duffin explained in the first screening order, the
Court has no information on how long Plaintiff had to wait to receive
medical care for his arm. Plaintiff injured himself while exercising on an
unidentified date. The “on-call nurse” told Plaintiff that she did not want
to disturb the doctor on a holiday weekend and gave him ice and
Ibuprofen. Plaintiff had to wait until July 5 to see Dr. Sauvey for an
examination. Without more detail on how long Plaintiff had to wait for
medical care, Plaintiff cannot show that any Defendant was deliberately
indifferent to his needs. Indeed, given that Plaintiff says he was seen on
July 5, it is entirely possible that Plaintiff injured himself over the
preceding Independence Day weekend. Thus, he would have only waited
one or two days to receive treatment, an amount of time many people
who are not in prison would have to wait to see a doctor for aches and
pains from an exercise-related injury.
Further, as Magistrate Duffin already noted, Plaintiff does not
allege facts against Dr. Sauvey apart from her denial of his requests for
different or additional treatment. Plaintiff does not have a constitutional
right to receive the treatment of his choosing. See Forbes v. Edgar, 112 F.3d
262, 266–67 (7th Cir. 1997). Plaintiff suggests that Doehling, Gunderson,
and Grossman were aware of his medical condition and refused to secure
him surgery, but again, he has not alleged facts indicating that this was
anything more than his want. Reynolds v. Barnes, 84 F. App’x 672, 674 (7th
Cir. 2003) (“[T]he Constitution does not mandate that a prisoner receive
exactly the medical treatment he desires.”) According to the amended
complaint, the only individual who did anything to deny him treatment
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was the “on-call nurse,” who is not a defendant in the case. Therefore,
Plaintiff again fails to state a claim upon which relief can be granted.
Because Plaintiff clearly failed to address the deficiencies in his original
complaint, the Court finds that additional opportunity for amendment
would be futile, Foman v. Davis, 371 U.S. 178, 182 (1962), and it will
therefore dismiss the case with prejudice.
IT IS ORDERED that this action be and the same is hereby
DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1) for failure to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where the inmate is confined; and
THE COURT FURTHER CERTIFIES that any appeal from this
matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)
unless the plaintiff offers bona fide arguments supporting his appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 30th day of November, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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