Clark v. Doe #1 et al

Filing 23

SCREENING ORDER signed by Judge J P Stadtmueller on 10/26/2018. 20 Plaintiff's Amended Complaint is the OPERATIVE pleading. Defendant Brian Foster is DISMISSED from this action. Plaintiff is PERMITTED to proceed on a claim of deliberate i ndifference to Plaintiff's serious medical needs, in violation of the Eighth Amendment, against Defendants. Copies of Plaintiff's Amended Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on Defendants, who shall FILE a responsive pleading within 60 days. See Order. (cc: all counsel, via mail to Shane Clark at Kettle Moraine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHANE CLARK,
Plaintiff,

Case No. 18-CV-809-JPS

v.
BRIAN FOSTER, NATHAN
HAYNES, C.O. WOOD, C.O. C.
WINTERS, C.O. DEMERS, C.O. P.
MAHONEY, SGT. NATHAN WOLF,
C.O. SMELEER, C.O. C. HLYSTEN,
C.O. BILK, C.O. MUTCHIE, C.O.
BRITTANY MCCUTCHEON, and
JOHN DOES 1–8,

ORDER

Defendants.
Plaintiff, who is incarcerated at Kettle Moraine Correctional
Institution, filed a pro se complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. (Docket #1). He then filed an amended complaint
on October 18, 2018. (Docket #20). He did so without requesting leave in
accordance with the Court’s scheduling order. (Docket #18 at 1). The Court
now turns to screening the amended complaint. All of the legal standards
announced in the Court’s original screening order apply here. (Docket #10
at 1–3).
Plaintiff alleges that from March 9 until March 13, 2017, while he was
housed in Waupun Correctional Institution’s (“Waupun”) observation
wing, he was not provided his psychotropic and pain medications (he does
not describe what ailment necessitated those prescriptions). (Docket #20 at
2–5). The lack of medication caused severe withdrawal symptoms, pain,

and suicidal ideations. Id. at 5. Plaintiff alleges that he told Defendants,
numerous correctional officers at Waupun, of his symptoms throughout the
almost five-day period, but none of them actually obtained his medications
or otherwise secured medical care for him. Id. at 2–5. Plaintiff portrays their
response as generally uncaring despite knowing that he was experiencing
severe symptoms. Id. Plaintiff further suggests that some of the Defendants
may have altered records to conceal their lack of care. Id.
Like his initial complaint, Plaintiff’s amended complaint crosses the
very low threshold set at screening to state a claim for deliberate
indifference to his serious medical needs, in violation of the Eighth
Amendment. To state such a claim, 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
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 denial of his psychotropic medication
might ultimately be explained as mere negligence or the result of a
considered treatment decision by his care providers, at the present stage the
Court, generously construing Plaintiff’s allegations, finds that he states an
actionable claim.
In light of the foregoing, Plaintiff will continue to proceed on a claim
of deliberate indifference to his serious medical needs, in violation of the
Eighth Amendment, against Defendants. 28 U.S.C. § 1915A(b). The Court
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will also dismiss Defendant Brian Foster, the warden of Waupun, as he was
joined solely to assist in naming John Doe defendants. See (Docket #10 at 4).
While some John Doe defendants remain, Plaintiff may engage in discovery
with the other defendants to determine the identity of the John Does.
Accordingly,
IT IS ORDERED that Plaintiff’s amended complaint (Docket #20)
shall be his operative pleading in this matter;
IT IS FURTHER ORDERED that Defendant Brian Foster be and the
same is 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 amended complaint and this Order are being
electronically sent today to the Wisconsin Department of Justice for service
on Defendants; and
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 amended complaint
within sixty (60) days of receiving electronic notice of this Order;
Dated at Milwaukee, Wisconsin, this 26th day of October, 2018.
BY THE COURT:

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

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