Davis v. Harrispeters et al

Filing 7

SCREENING ORDER signed by Magistrate Judge William E Duffin on 7/17/2018. The court ORDERS that Davis's motion for leave to proceed without prepayment of the filing fee (in forma pauperis) (ECF No. 2 ) is GRANTED. The clerk's office is to electronically send copies of Davis's complaint and this order to the Wisconsin Department of Justice for service on defendants Harrispeters and Lutsey. The defendants Harrispeters and Lutsey shall file a responsive pleading to the complaint within sixty days of receiving electronic notice of this order. (cc: all counsel, plaintiff, Warden at GBCI via USPS) (mlm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BRUCE TERRELL DAVIS, JR.,
Plaintiff,
v.

Case No. 18-CV-465

SUSAN HARRISPETERS and
J. LUTSEY,
Defendants.
ORDER
Plaintiff Bruce Terrell Davis, Jr., a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. § 1983. Davis alleges that the defendants Susan
Harrispeters and J. Lutsey violated, and continue to violate, his civil rights by delaying
his medical treatment. (ECF No. 1.) He asserts that they have failed to follow the
recommendations of two doctors to schedule him for an appointment to see a back
specialist for his spine condition. Id. Davis has also filed a motion for leave to proceed
without prepayment of the filing fee (ECF No. 2). This order resolves Davis’s motion
and screens his complaint.

I.

Motion to Proceed Without Prepayment of the Filing Fee
The Prison Litigation Reform Act applies to this case because Davis was

incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to
give an incarcerated plaintiff the ability to proceed with his lawsuit without prepaying
the civil case filing fee as long as he meets certain conditions. One of those conditions is
that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff
pays the initial partial filing fee the court may allow him to pay the balance of the $350
filing fee over time through deductions from his prisoner account. Id.
On April 3, 2018, the court ordered Davis to pay an initial partial filing fee of
$8.57. (ECF No. 6.) Davis paid that fee on April 19, 2018. Therefore, the court will grant
Davis’s motion for leave to proceed without prepayment of the filing fee (ECF No. 2).
Davis must pay the remainder of the filing fee over time in the manner explained at the
end of this order.
II.

Screening the Plaintiff’s Complaint
A. Federal Screening Standard
The law requires the court to screen complaints brought by prisoners seeking

relief against a governmental entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). The court must dismiss a complaint if the plaintiff raises claims that
are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A(b).
To state a claim, a complaint must contain sufficient factual matter, accepted as
true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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).
To state a claim for relief under 42 U.S.C. § 1983 Davis 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 caused by the defendants acting under color of state law. BuchananMoore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village of
North 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 Davis’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)).
B. Plaintiff’s Allegations
Davis alleges that he suffers from “[spondylolysis] and grade I spondylolisthesis,
which [are] conditions in which a break in both sides of the ring allows the body of the

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vertebra to slip forward.” (ECF. No. 1 at 2.) He states that surgery is required in severe
cases and that he had two MRI’s to determine whether he needs surgery.
Prior to being transferred to Green Bay Correctional Institution (GBCI) from Fox
Lake Correctional Institution (FLCI), Davis states that he was scheduled for an
appointment to see a physiatry doctor for his condition and the pain associated with it
per the recommendation of UW neurosurgeon Dr. Mann. That appointment was
cancelled due to Davis’s transfer and flagged for rescheduling upon his arrival at GBCI.
When he arrived at GBCI, Davis informed defendants Harrispeters and Lutsey of
his condition and that his appointment with a physiatrist was to be rescheduled. At
some point, however, he was sent to a hospital for another MRI, after which Dr.
Douglas Chyatte recommended that he be “referred to a pain and spine
doctor/physiatry doctor.” Id. at 3.
Defendants have told Davis that “no off-site psychiatry appointment has been
recommended or ordered.” Id. at 4. Davis has constantly complained about the situation
and states that he is unable to participate in daily activities because of the popping in
his lower back and slippage of his vertebra. If not treated with off-site professional
attention, Davis states that his condition could result in paralysis.
Plaintiff seeks injunctive relief and punitive and compensatory damages.

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C. Analysis
Davis alleges that the defendants have and are continuing to violate his Eighth
Amendment rights. “The Eighth Amendment safeguards the prisoner against a lack of
medical care that ‘may result in pain and suffering which no one suggests would serve
any penological purpose.’ ” Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011) (quoting
Rodriguez v. Plymouth Ambulance Srv., 577 F.3d 816, 828 (7th Cir. 2009)). If prison officials
are “deliberately indifferent to prisoners’ serious medical needs,” id., or they “act with
‘deliberate indifference’ to a substantial risk of serious harm to an inmate[’s]” health or
safety, Farmer v. Brennan, 511 U.S. 825, 828 (1994) (citation omitted), then they violate
the Constitution. A claim based on deficient medical care must demonstrate, 1) an
objectively serious medical condition or serious harm, and 2) an official’s deliberate
indifference to that condition or harm. Id. at 834; Arnett, 658 F.3d at 750.
The Seventh Circuit Court of Appeals has held that serious medical needs
encompass not only conditions that are life-threatening or that carry risks of permanent,
serious impairment if left untreated but also those in which the deliberately indifferent
withholding of medical care results in needless pain and suffering. Gutierrez v. Peters,
111 F.3d 1364, 1371 (7th Cir. 1997). Davis has alleged that it has twice been
recommended that he be referred to a physiatrist for his “[spondylolysis] and grade I
spondylolisthesis,” but defendants have not scheduled him for an appointment with
one nor has he been seen by one. He states he continues to be in pain. The court finds

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this allegation is sufficient to support the first element of Davis’s deliberate indifference
claim.
With regard to the subjective, second element of his claim of deliberate
indifference, the Supreme Court has held that deliberate indifference requires that “the
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Farmer,
511 U.S. at 837. Inadvertent error, negligence, gross negligence or even ordinary
malpractice are insufficient grounds for invoking the Eighth Amendment. Vance v.
Peters, 97 F.3d 987, 992 (7th Cir. 1996); Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996).
Deliberate indifference in the denial or delay of medical care is evidenced by a
defendant's actual intent or reckless disregard. Reckless disregard is characterized by
highly unreasonable conduct or a gross departure from ordinary care in a situation in
which a high degree of danger is readily apparent. Benson v. Cady, 761 F.2d 335, 339 (7th
Cir. 1985).
Davis alleges that he not only made the defendants aware of this condition and
referred them to his medical records that were transferred with him from FLCI to GBCI,
but the defendants were also provided with recommendations from two different offsite doctors referring Davis to a physiatrist for his back pain. According to Davis, the
defendants disregarded and continue to disregard the recommendation. The court finds
that Davis has sufficiently alleged the second element of a claim of deliberate

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indifference against the defendants. He may, therefore, proceed with his Eighth
Amendment claim of deliberate indifference against defendants Harrispeters and
Lutsey.
III.

Conclusion
The court ORDERS that Davis’s motion for leave to proceed without

prepayment of the filing fee (in forma pauperis) (ECF No. 2) is GRANTED.
Under an informal service agreement between the Wisconsin Department of
Justice and this court, the court ORDERS the clerk’s office to electronically send copies
of Davis’s complaint and this order to the Wisconsin Department of Justice for service
on defendants Harrispeters and Lutsey.
Under an informal service agreement between the Wisconsin Department of
Justice and this court, the court ORDERS defendants Harrispeters and Lutsey to file a
responsive pleading to the complaint within sixty days of receiving electronic notice of
this order.
The court ORDERS that the agency having custody of Davis shall collect from
his institution trust account the $341.43 balance of the filing fee by collecting monthly
payments from Davis’s prison trust account in an amount equal to 20% of the preceding
month's income credited to his 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

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assigned to this action. If Davis is transferred to another institution—county, state, or
federal—the transferring institution shall forward a copy of this order along with his
remaining balance to the receiving institution.
The court will send a copy of this order to the officer in charge of the agency
where Davis is confined.
The court ORDERS that the parties may not begin all other discovery until after
the court enters a scheduling order setting deadlines for such discovery and dispositive
motions.
The court ORDERS that, under the Prisoner E-Filing Program, Davis shall
submit all correspondence and case filings to institution staff, who will scan and e-mail
documents to the court. 1 If Davis is no longer incarcerated at a Prisoner E-Filing
institution, he will be required to 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 JUDGE’S CHAMBERS. It
will only delay the processing of the case.

The Prisoner E-Filing Program is mandatory for all inmates of Dodge Correctional
Institution, Green Bay Correctional Institution, Waupun Correctional Institution,
Wisconsin Secure Program Facility, Columbia Correctional Institution, and Oshkosh
Correctional Institution.
1

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The court advises Davis that, if he fails to file documents or take other required
actions by the deadlines the court sets, the court may dismiss the case based on his
failure to prosecute. 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 18th day of July, 2018.

WILLIAM E. DUFFIN
U.S. Magistrate Judge

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