Tisher v. Tannan

Filing 7

ORDER signed by Judge J.P. Stadtmueller on 2/20/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. By 3/13/2018, Plaintiff to FILE an amended pleading or this action will be dismissed. Agency havi ng custody of Plaintiff to COLLECT the balance of the filing fee from his institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Thomas R. Tisher and Warden at Jackson Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
THOMAS R. TISHER,
Plaintiff,

v.

Case No. 18-CV-197-JPS

DR. TANNAN,
Defendant.

ORDER

Plaintiff Thomas R. Tisher, who is incarcerated at Jackson
Correctional Institution, proceeds in this matter pro se. He filed a complaint
alleging that Defendant violated his constitutional rights. (Docket #1). This
matter comes before the court on Plaintiff’s petition to proceed without
prepayment of the filing fee (in forma pauperis). (Docket #2). Plaintiff has
been assessed and paid an initial partial filing fee of $5.21. See 28 U.S.C. §
1915(b)(1).
The court shall screen complaints brought by prisoners seeking relief
against a governmental entity or an 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.
Id. § 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, therefore, dismiss a claim as frivolous where

it is 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 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). 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that
offers mere “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). 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 they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be
supported by factual allegations. Id. If there are well-pleaded factual
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allegations, the court must, second, “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. Section 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. 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). 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)).
Plaintiff alleges that on August 28, 2017, while incarcerated at
Oshkosh Correctional Institution, he saw Defendant for pain and elevated
blood pressure. (Docket #1 at 2). Defendant prescribed a blood pressure
medication and Tylenol with codeine. Id. Plaintiff says he is allergic to
morphine and that this is noted in his medical file. Id. Defendant directed
Plaintiff to take a codeine pill while at the prison’s medical unit, and was
later given another by a guard. Id. At 10:00 p.m. that same day, Plaintiff
complained that he could not breathe. Id. at 2-3. A nurse saw him and noted
his allergy. Id. at 3. Plaintiff was taken to a local hospital and later released,
though it is not clear if he was kept overnight. Id. Plaintiff says he
“suffe[red] from a[n] unprof[f]esional decision made by [Defendant].” Id.
Plaintiff asks for money damages and an “[i]njunction ordering Jackson
Correctional Institution to provide [a]dequate [m]edical care by a medical
doctor that treats pain from [d]egenerative [d]isc d[i]sease.” Id. at 4.

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Plaintiff fails to state a claim for relief against Defendant. The Eighth
Amendment provides, inter alia, that prisoners are entitled to a minimal
level of healthcare while in custody. Petties v. Carter, 836 F.3d 722, 727-28
(7th Cir. 2016). The Eighth Amendment is violated when the prisoner shows
that they “suffered from an objectively serious medical condition,” and that
“the individual defendant was deliberately indifferent to that condition.”
Id. at 728. The term “[d]eliberate indifference”
is a subjective standard. To demonstrate deliberate
indifference, a plaintiff must show that the defendant acted
with a sufficiently culpable state of mind, something akin to
recklessness. A prison official acts with a sufficiently culpable
state of mind when he knows of a substantial risk of harm to
an inmate and either acts or fails to act in disregard of that
risk. Deliberate indifference is more than negligence and
approaches intentional wrongdoing. In other words,
[d]eliberate indifference is not medical malpractice; the
Eighth Amendment does not codify common law torts.
Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).
Assuming, without deciding, that Plaintiff’s pain and blood pressure
on August 28, 2017 could be considered a serious medical condition,
Plaintiff fails to show Defendant’s deliberate indifference to his medical
needs. Plaintiff comes nowhere close to alleging factual material which
would infer intentional or reckless conduct by Defendant. Taking his
allegations as true, Defendant negligently mis-prescribed the codeine pill
without noticing that Plaintiff was allergic to it. There is no indication that
Defendant was actually aware that prescribing a codeine pill to Plaintiff
would cause an allergic reaction. At best, Plaintiff’s allegations state a claim
for medical malpractice. As instructed by Arnett, such a claim does not

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invoke the protections of the Eighth Amendment, but is instead a state law
claim over which this federal court lacks jurisdiction
The Court will, nevertheless, allow Plaintiff an opportunity to
amend his complaint. If he chooses to offer an amended complaint, Plaintiff
must do so no later than March 13, 2018. If he does not do so, this action
will be dismissed. Plaintiff should be aware that an amended complaint
supersedes 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
Seventh Circuit 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); see also Pintado v. Miami-Dade Housing Agency,
501 F.3d 1241, 1243 (11th Cir. 2007) (“As a general matter, ‘[a]n amended
pleading supersedes the former pleading; the original pleading is
abandoned by the amendment, and is no longer a part of the pleader’s
averments against his adversary.’”) (quoting Dresdner Bank AG, Dresdner
Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215 (11th
Cir. 2006)). If an amended complaint is received, it will be screened
pursuant to 28 U.S.C. § 1915A.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepayment of the filing fee (in forma pauperis) (Docket #2) be and the same
is hereby GRANTED;
IT IS FURTHER ORDERED that on or before March 13, 2018,
Plaintiff shall file an amended pleading or this action will be dismissed;
IT IS FURTHER ORDERED that the agency having custody of
Plaintiff shall collect from his institution trust account the balance of the
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filing fee by collecting monthly payments from Plaintiff’s prison trust
account in an amount equal to 20% of the preceding month’s income
credited to Plaintiff’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 assigned to this action. If Plaintiff is transferred to
another institution, county, state, or federal, the transferring institution
shall forward a copy of this Order along with Plaintiff’s remaining balance
to the receiving institution;
IT IS FURTHER ORDERED that a copy of this order be sent to the
officer in charge of the agency where Plaintiff is confined; and
IT IS FURTHER ORDERED that 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 matter.
Plaintiff is further advised 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 the parties.

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Dated at Milwaukee, Wisconsin, this 20th day of February, 2018.
BY THE COURT:

_____________________________
J. P. Stadtmueller
U.S. District Judge

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