Tisher v. Tannan

Filing 9

SCREENING ORDER re 8 Amended Complaint signed by Judge J.P. Stadtmueller on 3/21/2018. Plaintiff PERMITTED to proceed on claim of deliberate indifference to Plaintiff's serious medical need in violation of the Eighth Amendment. Copies of P laintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendant, who shall FILE a responsive pleading within 60 days. See Order. (cc: all counsel, via mail to Thomas R. Tisher 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,

ORDER
Defendant.

On February 20, 2018, the Court screened Plaintiff’s Complaint as
required by 28 U.S.C. § 1915A. (Docket #7). The Court found that the
Complaint failed to state any viable grounds for relief. Id. at 4-5. The Court
afforded Plaintiff an opportunity to amend his pleading no later than March
13, 2018. Id. at 5. Plaintiff filed an Amended Complaint on that date. The
Court must now screen that pleading, and all the same standards
announced in the original screening order apply here. Id. at 1-3.
The Amended Complaint alleges that a prior medical provider
found him allergic to codeine and morphine. (Docket #8 at 3). Prior to
August 29, 2017, Plaintiff had been seen by Defendant a number of times.
Id. Plaintiff avers that Defendant could clearly see his allergies listed in his
medical file. Id. Nevertheless, on August 29, 2017, after Plaintiff complained
of severe back pain (he has degenerative disc disease), Defendant
prescribed Tylenol with codeine. Id. Plaintiff had an allergic reaction and
was taken to the hospital. Id.
As noted in the original screening order, Plaintiff’s claim sounds in
the Eighth Amendment. Defendant may be liable for his mistreatment of
Plaintiff if Plaintiff shows that he “suffered from an objectively serious

medical condition,” and that “the individual defendant was deliberately
indifferent to that condition.” Petties v. Carter, 836 F.3d 722, 728 (7th Cir.
2016). “Deliberate indifference” occurs when “the defendant acted with a
sufficiently culpable state of mind, something akin to recklessness.” Arnett
v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). Defendant’s actions could be
considered reckless if “he knows of a substantial risk of harm to an inmate
and either acts or fails to act in disregard of that risk.” Id.
Plaintiff’s allegations, viewed most favorably to him, establish both
elements. First, Plaintiff’s back condition was diagnosed, required multiple
surgeries, and apparently caused severe pain. Gayton v. McCoy, 593 F.3d
610, 620 (7th Cir. 2010) (“An objectively serious medical condition is one
that has been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would perceive the need for a doctor's
attention.) (quotation omitted). Second, Plaintiff specifically alleges that
Defendant knew about his allergies and prescribed codeine anyway.
(Docket #8 at 3). Whether this is factually correct remains to be seen, but at
the screening stage, the Court must take the allegation as true.
In sum, the Court finds that Plaintiff may proceed on the following
claim pursuant to 28 U.S.C. § 1915A(b): Defendant’s deliberate indifference
to Plaintiff’s serious medical need, in violation of the Eighth Amendment,
when Defendant prescribed codeine to Plaintiff on August 29, 2017.
Accordingly,
IT IS ORDERED that pursuant to an informal service agreement
between the Wisconsin Department of Justice and this Court, copies of
Plaintiff’s Amended Complaint and this Order are being electronically sent
today to the Wisconsin Department of Justice for service on Defendant; and

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IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendant shall file a responsive pleading to the Amended Complaint
within sixty (60) days of receiving electronic notice of this Order.
Dated at Milwaukee, Wisconsin, this 21st day of March, 2018.
BY THE COURT:

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

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