Richmond v. Savey et al

Filing 8

SCREENING ORDER re 1 Complaint signed by Judge J.P. Stadtmueller on 5/3/2018. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee GRANTED. Defendants Edward Walls, Judy Smith, and D. Foster DISMISSED from a ction. Plaintiff PERMITTED to proceed on a claim of deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, against Defendants Dr. Sauvey, Dr. Murphy, and Dr. Grossman. Copies of this Order and Plaintiff's Com plaint to be electronically SENT to the Wisconsin DOJ for service on such defendants, who shall FILE a responsive pleading within 60 days. Agency having 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 Sterling Richmond and Warden at Oshkosh Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
STERLING RICHMOND,
Plaintiff,

Case No. 18-CV-530-JPS

v.
EDWARD WALLS, JUDY SMITH, D.
FOSTER, DR. SAUVEY, DR.
MURPHY, and DR. GROSSMAN,

ORDER

Defendants.
Plaintiff, who is incarcerated at Oshkosh Correctional Institution
(“Oshkosh”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that
his civil rights were violated. (Docket #1). This matter comes before the
Court on Plaintiff’s motion to proceed in forma pauperis. (Docket #2).
Plaintiff has been assessed and paid an initial partial filing fee of $30.20. 28
U.S.C. § 1915(b)(4).
The Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or employee of a
governmental entity. Id. § 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); Gladney v. Pendelton Corr. Facility, 302 F.3d
773, 774 (7th Cir. 2002). 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;
Gladney, 302 F.3d at 774. “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 (7th Cir. 2003); Paul v.
Marberry, 658 F.3d 702, 705 (7th Cir. 2011).
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; 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)); Christopher v. Buss, 384 F.3d 879, 881
(7th Cir. 2004). However, a complaint that offers “‘labels and conclusions’”
or “‘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. The complaint
allegations “must be enough to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.
In considering whether a complaint states a claim, courts should first
“identif[y] 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 wellPage 2 of 9

pleaded factual allegations, the Court must “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. § 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); Gomez v. Toledo, 446
U.S. 635, 640 (1980). The Court is obliged to give 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’s allegations concern allegedly inadequate medical care he
received from prison medical personnel following leg surgery. Defendant
Dr. Sauvey (“Sauvey”), a physician at Oshkosh, saw Plaintiff in early 2013
for a complaint of leg pain. (Docket #1 at 5). She diagnosed him with
problems in his Achilles tendon and sent him to an outside specialist, Dr.
Grossman (“Grossman”). Id. Grossman determined that Plaintiff needed
surgery on the Achilles tendon, which he performed in March 2013. Id.
Plaintiff had difficulties healing after the surgery, including bleeding
through his bandages, puss draining from his wound, odor emanating from
the wound, and pain. Id. at 5–6. This occurred despite the fact that prison
medical staff cleaned his wound and changed his bandages twice daily. Id.
He complained of pain and possible infection to many medical personnel,
including Sauvey. Id. at 6. He was given pain medication but the prison staff
seemed to believe that the wound was healing properly. Id. As for
Grossman, Plaintiff accuses him of not putting stitches in the wound
originally, which he denied, and not doing enough to abate the growing
infection. Id. at 7. Plaintiff further alleges that over time his pain
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medications, antibiotics, and wound dressing schedule were changed or
stopped by the physicians without sufficient reason and despite his
ongoing complaints of pain and infection. See id.
After about a month, Plaintiff was shipped off to Dodge Correctional
Institution (“Dodge”) for more intensive medical care, as Dodge has a more
robust medical facility. Id. at 8. During May 2013, Plaintiff received care
from Dodge medical staff. Id. He complains about the quality of the care he
received there, but he names none of the Dodge medical personnel as
defendants in this case. Id. Plaintiff contends that his condition continued
to worsen, with the wound turning from green to white to black, and he
became bound to a wheelchair for a period of time. Id. at 8–9.
Plaintiff saw Grossman again in early June 2013. Id. at 9. Grossman
advised that another surgery was required on the Achilles tendon. Id. He
performed the second surgery on June 12, 2013. Id. Plaintiff complains that
he was not seen by a doctor for over a week after the surgery, though he
did receive bandage changes daily. Id. He was returned to Oshkosh, and at
a follow-up appointment on June 25, he learned that he needed to see a
dermatologist for wound care and a skin graft. Id. at 10. Plaintiff’s pain
medications were stopped from June 27 to July 6, which he says kept him
in severe pain during that period. Id.
Plaintiff reports no problems in recovery during July and August
2013. Id. He received a skin graft in September 2013. Id. He was ordered to
have daily bandage changes, but on some days this did not occur and
Plaintiff believes that the Oshkosh Health Services Unit (“HSU”) did not
have the correct equipment for the job. Id. Plaintiff alleges he experienced
pain and soreness in late September and October 2013. Id. at 11.

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His recovery appeared to proceed normally for a year and a half,
until in May 2015 Plaintiff noticed a bump around the surgical site that
broke open and spilled blood and puss. Id. Plaintiff was seen in the HSU,
the staff cleaned the wound, and Dr. Murphy (“Murphy”) told him the new
infection was not from the original wound. Id. Murphy prescribed
antibiotics and took a sample of the wound for a culture. Id. At some point,
an HSU nurse decided that Plaintiff was being given the wrong medication
and changed Plaintiff’s prescription. Id.
The new wound, according to Plaintiff, was painful and infected. Id.
at 11–12. Plaintiff again started daily wound cleanings in the HSU. Id.
However, Plaintiff reports that he was not given pain medication. Id.
Eventually doctors learned that Plaintiff had an infection resulting from
blood transfusions and the “hospital environment.” Id. at 12. He was denied
a medical restriction to a bottom bunk despite his complaints of pain. Id. In
July 2015, Murphy opened the wound, drained it, and medicated and
bandaged it. Id. at 13.
Nevertheless, Plaintiff claims that the pain, blood, and puss
continued. Id. Nursing staff denied his requests to see Murphy. Id. He was
eventually seen by the doctor again on August 5, 2015. Id. Plaintiff appears
to disagree with Murphy’s plan of care, which was to continue bandaging
and observing the wound. Id. at 14. For the next few weeks, Plaintiff’s
continued requests to see the doctor because of ongoing pain were denied.
Id.
Plaintiff saw Murphy again in late September 2015, and the doctor
reported that Plaintiff would receive a third surgery from Dr. Grossman. Id.
At the visit, Plaintiff says he complained of pain but was ignored. Id. After
this visit, Plaintiff continued to complain of pain and drainage but
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apparently nothing was done. Id. at 15. Plaintiff eventually saw Dr.
Grossman for the third surgical procedure in late November 2015. Id. It
seems Dr. Grossman opened the wound and cleaned it. Id. at 16–17. Plaintiff
was given daily bandage cleanings and pain medications with apparently
normal recovery. Id. When the pain medications were stopped, he
complained and they were reordered. Id. at 17.
Some Dodge nurses—it seems Plaintiff was convalescing there—
opined that the problems Plaintiff experienced resulted from the doctors
not adequately treating the original infection. Id. The infection had gotten
so severe that it was in Plaintiff’s blood, and it returned to the wound site
in December 2015. Id. However, Plaintiff’s allegations drop off sharply here;
he was prescribed additional antibiotics, received a protective boot for the
leg in question, and apparently had a normal recovery thereafter. See id. at
18.
Though his factual allegations are lengthy, his complaint is simple:
he charges Defendants with denying him needed care and medication and
thereby causing him unnecessary and severe pain. Plaintiff’s complaint
crosses the very low threshold set at screening to state such a claim against
Sauvey, Murphy, and Grossman. To demonstrate that these doctors were
deliberately indifferent to his serious medical needs, in violation of the
Eighth Amendment, Plaintiff must show: (1) an objectively serious medical
condition; (2) that Defendants knew of the condition and were deliberately
indifferent in treating it; and (3) this indifference caused him some injury.
Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010). The deliberate
indifference inquiry has two components. “The official must have
subjective knowledge of the risk to the inmate’s health, and the official also
must disregard that risk.” Id. Negligence cannot support a claim of
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deliberate indifference, nor is medical malpractice a constitutional
violation. Estelle v. Gamble, 429 U.S. 97, 105–06 (1976); Roe v. Elyea, 631 F.3d
843, 857 (7th Cir. 2011). While the prison physicians’ decisions in treating
Plaintiff’s infections or their denial of pain medication might ultimately be
explained as the proper exercise of medical discretion, or at worst mere
negligence, at the present stage the Court, generously construing Plaintiff’s
allegations, find that he states a claim against them. Smith v. Knox Cnty. Jail,
666 F.3d 1037, 1040 (7th Cir. 2012); but see Walker v. Zunker, 30 F. App’x 625,
628 (7th Cir. 2002) (“Mere dissatisfaction with a particular course of
treatment, or even malpractice, does not amount to deliberate
indifference.”)
However, Plaintiff may not proceed on claims against the other
Defendants—Edward Walls, the Secretary of the Wisconsin Department of
Corrections, Judy Smith, the warden at Oshkosh, and D. Foster, the HSU
manager at Oshkosh. In the complaint, he makes no mention whatsoever of
these individuals except to say that they exercise supervisory authority over
prison staff. (Docket #1 at 4). He also baldly alleges that “each individual
knew of [his] serious condition and caused [him] pain and suffering” by
failing to rectify the situation. Id. at 5. Yet nowhere does he allege when or
how he placed these officials on notice of his condition or pain.
These officials cannot be liable for the actions of others simply
because they may have acted in a supervisory capacity. Rather, they are
responsible only for their own conduct. Gentry v. Duckworth, 65 F.3d 555,
561 (7th Cir. 1995). Since Plaintiff does not allege that any of these
Defendants participated in his medical care or knew of Sauvey, Murphy, or
Grossman’s purported misconduct, no claim can be stated against them. Id.
(to be liable, a supervisory defendant “must know about the conduct and
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facilitate it, approve it, condone it, or turn a blind eye”). Thus, for the
reasons stated above, Plaintiff shall be permitted to proceed on a claim of
deliberate indifference to his serious medical needs, in violation of the
Eighth Amendment, against Defendants Sauvey, Murphy, and Grossman.
28 U.S.C. § 1915A(b).
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed in forma
pauperis (Docket #2) is GRANTED;
IT IS FURTHER ORDERED that Defendants Edward Walls, Judy
Smith, and D. Foster be and the same are hereby DISMISSED from this
action;
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of Plaintiff’s complaint and this Order are being electronically sent
today to the Wisconsin Department of Justice for service on Defendants;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
Defendants shall file a responsive pleading to the complaint within sixty
(60) days of receiving electronic notice of this Order;
IT IS FURTHER ORDERED that the agency having custody of the
prisoner 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
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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.
The Court further advises Plaintiff 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 3rd day of May, 2018.
BY THE COURT:

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

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