Gillum v. Armor Health Care et al

Filing 10

SCREENING ORDER re 9 Amended Complaint signed by Judge J.P. Stadtmueller on 5/10/2018: DISMISSING CASE 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 Pla intiff 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 bonafide arguments supporting his appeal. See Order. (cc: all counsel, via mail to Michael L. Gillum at Milwaukee County House of Correction and to AAG Corey F. Finkelmeyer)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. GILLUM,
Plaintiff,
v.
ARMOR HEALTH CARE, ALYSSA
SEKADIO, HOUSE OF
CORRECTION, C.O. NASH, LT.
MILLICCA, and CAPTAIN
SULLIVAN,

Case No. 18-CV-236-JPS

ORDER

Defendants.
On April 11, 2018, the Court screened Plaintiff’s Complaint as
required by 28 U.S.C. §§ 1915 and 1915A. (Docket #8). The Court concluded
that Plaintiff failed to state a viable claim for relief against any of the
Defendants. Id. It granted Plaintiff leave to offer an amended pleading no
later than May 2, 2018. Id. Plaintiff’s amended complaint was received on
April 30, 2018. (Docket #9). The amended complaint must also be screened,
and all of the same standards announced in the Court’s April 11 order apply
here. (Docket #8 at 1–3).
The material allegations of the amended complaint are similar to
those of the original complaint. Compare (Docket #1) with (Docket #9).
Plaintiff was incarcerated at the Milwaukee House of Correction (“HOC”)
in January 2018. (Docket #9 at 1). He says the temperature inside his cell
was 55 degrees, though it is not explained how he knew this. Id. Plaintiff
wore only a t-shirt and linen slacks. Id. In the early morning hours of
January 5, after sitting in the cold for three-and-a-half hours, Plaintiff

experienced vomiting and diarrhea. Id. He was sent to the health center and
evaluated by Defendant Alyssa Sekadio (“Sekadio”), who is identified as
his healthcare provider. Id. Sekadio diagnosed Plaintiff with pneumonia
and ordered that he be quarantined. Id. Plaintiff was not sent to a hospital,
but was instead put on medical observation in the segregation unit. Id.
Plaintiff’s segregation cell was “full of bio-matter,” including human
waste from a prior occupant, and it also was at a “below freezing”
temperature. Id. at 1–2. At some point, Plaintiff soiled himself and his
clothes. Id. at 2. He asked Defendant C.O. Nash (“Nash”), the guard on
duty, if he could take a shower to wash himself and his clothing. Id. She
repeatedly refused this request. Id. He was also denied contact with
“physic” services, which the Court interprets as the psychological staff of
HOC. Id. Only when the next guard came on duty were Plaintiff’s requests
fulfilled. Id.
Plaintiff’s amended complaint then shifts its focus to his
subsequently filed grievances. His first was about being sent to segregation
rather than to a hospital. Plaintiff says that HOC administration commonly
sends inmates to segregation for medical observation, rather than an
infirmary or hospital. Id. He nevertheless asserts that although Sekadio
would be “overridden by prison staff” as to Plaintiff’s placement in
segregation, she “could have expressed her concerns.” Id. Plaintiff asked
her directly why he was being sent to segregation, and she said it was
because HOC was not equipped with an infirmary. Id. He contends that the
lack of an infirmary meant that he received no healthcare at all. Id.
Plaintiff’s second grievance was directed at Nash’s conduct. Id. at 3.
He says that the grievance process was ineffective because Nash was called
on to respond to the grievance in the first instance. Id. Plaintiff further
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complains that Defendants Lt. Millicca (“Millicca”) and Captain Sullivan
(“Sullivan”) hindered the grievance process. Id. Plaintiff claims that their
conduct violated his “due process rights.” Id. Finally, Plaintiff either filed a
grievance against Defendant Armor Health Care (“Armor”), or Armor’s
employees responded to some grievances; Plaintiff does not clearly
describe Armor’s involvement. Id. He nevertheless asserts that “Armor
health care nursing supervisors” offered misstatements in responding to his
grievances. Id.
Plaintiff concludes by stating that “all defendants play a part in
intentional acts of wrong doing, deception, or not taking responsibility of
there [sic] actions in the cruel and unusually [sic] punishment that placed
my health and life in jeopardy[.]” Id. He requests $1,000,000, that Millicca
and Sullivan be fired, and that HOC change its policy on placing inmates
on medical observation in the segregation unit. Id. at 3–4.
Plaintiff has again failed to state any viable claims for relief for the
same reasons the Court explained in its prior screening order. Thus, this
latter screening order will be rather duplicative of the former. Some of the
Defendants may be dismissed summarily. HOC is not a suable entity. See
Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir. 2012). Armor is not
liable simply because it, through its employees, generally provides medical
services at the HOC, and neither has Plaintiff alleged a policy claim against
Armor. Maniscalco v. Simon, 712 F.3d 1139, 1145 (7th Cir. 2013); McCauley v.
City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). Millicca and Sullivan were
not directly involved in the January 5 incident. Thus, they cannot bear
Eighth Amendment liability stemming from that incident. Burks v.
Raemisch, 555 F.3d 592, 595–96 (7th Cir. 2009). Nor could they be liable for
their grievance handling; though Plaintiff may not have liked how they
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resolved his grievances, they did not simply send his complaints to the
shredder. Id. at 595.
Plaintiff comes closer to stating claims against Sekadio and Nash, but
still falls short. The Eighth Amendment proscribes the use of cruel and
unusual punishment. Plaintiff’s allegations invoke two recognized
variations of that rule. One is 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).
The second variation arises when “prison officials deliberately
ignore[] conditions of confinement that failed to meet contemporary
requirements of minimal decency.” Wheeler v. Walker, 303 F. App’x 365, 368
(7th Cir. 2008). The Seventh Circuit explains that “[m]inimal decency
requires the prison to provide reasonably adequate sanitation and
protection from the cold.” Id. Ultimately, the standards are very similar—
they require an objectively serious deprivation and a sufficiently culpable

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mental state on the part of the prison official. See Haywood v. Hathaway, 842
F.3d 1026, 1030–31 (7th Cir. 2016).
Plaintiff’s claim against Sekadio appears to be for medical deliberate
indifference. Assuming, without deciding, that Plaintiff suffered a serious
medical condition, Sekadio was far from indifferent to Plaintiff’s needs. She
evaluated him and ordered treatment. Whether or not HOC has an
infirmary, Plaintiff did indeed receive medical attention. Further, prison
officials, not Sekadio, were in charge of Plaintiff’s cell assignment. Plaintiff
gives no indication that she could overrule the guards. Though Plaintiff
now says that Sekadio should have “expressed her concerns” about his cell
assignment, he does not explain how that would have changed anything.
Sekadio cannot be liable for deliberate indifference for failing to engage in
a futile protest.
Plaintiff seems to assert both Eighth Amendment variations against
Nash. A careful review of Plaintiff’s allegations reveals that neither is
present here. Plaintiff complained to Nash about only two things: 1) the
need to wash himself, and 2) a desire to be seen by the “physic” service.
Plaintiff never complained to Nash about the illness which landed him in
medical segregation, whether it was pneumonia or something else. Further,
there is no indication that Plaintiff had a diagnosable or obvious
psychological problem which mandated involvement by a mental health
professional. Finally, Nash was entitled to rely on the medical care
provided by HOC’s medical staff. King v. Kramer, 680 F.3d 1013, 1018 (7th
Cir. 2012). Thus, Nash was not deliberately indifferent to Plaintiff’s
presumed medical needs.
The same is true for the conditions of confinement claim. Plaintiff
did not tell Nash that his cell was too cold or that it was contaminated with
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waste. Further, Plaintiff does not explain how Nash was responsible for that
cell assignment or that she would have been authorized to move him.
Finally, as to the cold, Plaintiff is not entitled to relief from the “usual
discomforts of winter,” even if those seem harsh. See Mays v. Springborn, 575
F.3d 643, 648–49 (7th Cir. 2009).
Though Plaintiff did complain about being soiled himself, he was
allowed to shower within twelve hours. He seems to have endured the cold
for about that same amount of time. While neither condition was pleasant,
the Eighth Amendment sets an extremely high bar for claims that a prison’s
living standards fall below the level of minimal decency. Factual scenarios
which present viable claims generally last for at least days, if not weeks, of
exposure to such conditions. See Wheeler, 303 F. App’x at 368 (collecting
cases). Plaintiff’s relatively brief suffering, while not cause for
commendation to Nash or the prison generally, is not sufficiently serious to
invoke constitutional protections.
Plaintiff has already been afforded an opportunity to amend his
pleading. This did not result in materially different allegations, so there is
no reason to give him a second chance at amendment. This action will be
dismissed for his failure to state a claim for relief.
Accordingly,
IT IS ORDERED that this action be and the same is hereby
DISMISSED 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 the Court document
that Plaintiff has incurred a “strike” under 28 U.S.C. § 1915(g);

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IT IS FURTHER ORDERED that a copy of this order be sent to
Corey F. Finkelmeyer, Assistant Attorney General, Wisconsin Department
of Justice, P.O. Box 7857, Madison, Wisconsin, 53707-7857; 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 Plaintiff offers bonafide arguments supporting his appeal.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 10th day of May, 2018.
BY THE COURT:

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

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