Gillum v. Armor Health Care et al
ORDER signed by Judge J.P. Stadtmueller on 4/11/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Plaintiff to FILE an Amended Complaint by 5/2/2018 or this action will be dismissed. Agency having custody of Plaintiff to COLLECT balance of filing fee from Plaintiff's institution trust account in accordance with this Order. See Order for further details. (cc: all counsel, via mail to Michael L. Gillum and Superintendent at Milwaukee County House of Correction) (jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. GILLUM,
ARMOR HEALTH CARE, ALYSSA
SEKADIO, HOUSE OF
CORRECTION, C.O. NASH, LT.
MILLICCA, and CAPTAIN
Case No. 18-CV-236-JPS
Plaintiff Michael L. Gillum, who is incarcerated at the Milwaukee
House of Correction (“HOC”), proceeds in this matter pro se. He filed a
complaint alleging that Defendants 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). Due to Plaintiff’s indigence, the Court waived payment of an initial
partial filing fee. See 28 U.S.C. § 1915(b)(4).
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, 1109–
10 (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).
Page 2 of 9
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
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.
Cnty. 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)).
At all times relevant, Plaintiff was incarcerated at the HOC. (Docket
#1 at 2). Plaintiff alleges that in the early morning hours of January 5, 2018,
he awoke shaking “after trying to b[ear] the extremely cold climate.” Id. He
eventually began vomiting and having diarrhea. Id. Plaintiff was sent to the
health center, which determined that he had a fever of 109 degrees and a
low heart rate. Id. Defendant Alyssa Sekadio (“Sekadio”), identified as his
healthcare provider, ordered Plaintiff quarantined and placed on medical
Rather than being sent to a medical unit or a hospital, Plaintiff was
placed in the disciplinary housing unit. Id. Plaintiff says that those cells are
Page 3 of 9
usually fouled by other inmates’ urine and feces, but does not state whether
his cell was in such a condition. Id. at 2–3. Plaintiff asked the guard on duty,
Defendant C.O. Nash (“Nash”), to take a shower, as Plaintiff had “bio
matter and feces on [his] person.” Id. at 3. Nash denied Plaintiff’s repeated
requests for a shower throughout her shift, though other inmates in the unit
were permitted to shower. Id. Plaintiff also complained that his cell was
cold, but that issue was not remedied either. Id. Finally, Plaintiff asked for
a meeting with “psych services,” but Nash told him that she could not get
a response from them. Id. When the next guard took over after Nash,
Plaintiff was allowed to take a shower and was provided with extra
blankets. Id. at 3–4. Shortly thereafter, Plaintiff was moved to a different
unit. Id. at 4.
Plaintiff filed grievances about his treatment. Id. The remainder of
Plaintiff’s allegations are directed at the grievance process. Id. at 4–5. In
sum, Plaintiff contends that his grievances were not appropriately handled,
first by Nash, and then by Defendants Lt. Millicca (“Millicca”) and Captain
Sullivan (“Sullivan”). Id. at 4. As to Nash, Plaintiff complains that she made
misstatements in her response to his grievances. Id. As to Millicca and
Sullivan, Plaintiff says that they deliberately hindered the grievance process
by delaying the processing of the grievances and by altering dates on the
forms. Id. at 4–5. Plaintiff further alleges that he filed a grievance against
Defendant Armor Health Care (“Armor”) for “sending me to . . .
segregation cells for medical observation[.]” Id. at 5.
Plaintiff seeks monetary damages of $1,000,000.00 “due [to] the fact
that my life was placed in danger, that I was forced to sit in a segregation
cell that was not built or equipped or suitable for a person to be sent for
medical observation.” Id. at 6. Plaintiff also complains that his requests for
Page 4 of 9
care were ignored by Nash. Id. He claims that his life was in danger
“because of me being ill and placed in a[n] unhabitial [sic] climate.” Id.
Plaintiff’s allegations fail to state a claim for relief against any of the
named defendants. Defendant 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).
Plaintiff’s claims against the individual defendants also fail. 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
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).
Page 5 of 9
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
mental state on the part of the prison official. See Haywood v. Hathaway, 842
F.3d 1026, 1030–31.
Plaintiff’s claim against Sekadio appears to be for medical deliberate
indifference. Assuming, without deciding, that Plaintiff suffered a serious
condition, Sekadio was far from indifferent to Plaintiff’s medical needs. She
evaluated him and ordered treatment. Prison officials, not Sekadio, were in
charge of Plaintiff’s cell assignment. Plaintiff gives no indication that she
could overrule the guards.
Plaintiff seems to assert both Eighth Amendment variations against
Nash. However, it is not clear that either are present here. As to the
conditions of Plaintiff’s cell, though it was an allegedly cold cell, he does
not explain how Nash was responsible for that cell assignment. It is also not
entirely clear how Plaintiff became soiled, and thus whether Nash’s refusal
to let him shower was appropriate or not. Further, Plaintiff was only
exposed to the cold for about eight hours. Though this would certainly be
uncomfortable, prisons are not comfortable places, and the constitution is
not implicated for the “usual discomforts of winter.” See Mays v. Springborn,
575 F.3d 643, 648–49 (7th Cir. 2009). To the extent Plaintiff alleges Nash’s
indifference to his medical needs, there are two problems. First, Plaintiff did
not ask Nash to see a medical provider, only “psych services,” which would
Page 6 of 9
not see him. Second, Nash was entitled to entrust Plaintiff’s care to the
medical providers at the HOC. King v. Kramer, 680 F.3d 1013, 1018 (7th Cir.
2012). Finally, as to both claims, Plaintiff does not allege that Nash had the
requisite state of mind. Plaintiff’s allegations do not establish that Nash
knew—not merely should have known, but in fact knew— that Plaintiff had
an objectively serious condition and that she chose to do nothing about it.
Finally, as to Millicca and Sullivan, Plaintiff’s allegations do not
implicate any constitutional protections. They were not directly involved in
the January 5 incident. Their conduct came after the complained-of events;
they had no ability to go back in time and change how Plaintiff was treated.
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 resolved his grievances, they did not simply send his
complaints to the shredder. Id. at 595.
The Court will allow Plaintiff an opportunity to amend his complaint
to correct the deficiencies identified above. If he chooses to offer an
amended complaint, Plaintiff must do so no later than May 2, 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;
Page 7 of 9
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.
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 May 2, 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
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:
Page 8 of 9
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.
Dated at Milwaukee, Wisconsin, this 11th day of April, 2018.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
Page 9 of 9
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?