Shaw v. Kemper et al

Filing 16

SCREENING ORDER re 1 Plaintiff's Complaint signed by Judge J P Stadtmueller on 3/31/2021. 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee is DENIED as moot. 9 Plaintiff's Motion for Order Dire cting Defendants to Reply is DENIED. 11 Plaintiff's Motion for Default Judgment is DENIED. 13 Plaintiff's Motion to Withdraw Magistrate Judge Consent is DENIED as moot. CASE DISMISSED with prejudice under 28 U.S.C. §1915A(b) (1) because the complaint fails to state a claim. Clerk of Court to DOCUMENT that this inmate has incurred a "strike" under 28 U.S.C. § 1915(g). See Order. (cc: all counsel, via mail to Terrance J Shaw at Racine Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRANCE J. SHAW,
Plaintiff,
v.
PAUL S. KEMPER, KEVIN CARR,
JOSEPH MCLEAN, KIM M.
CHAFFIN, JERILYN TAYLOR,
TRAVIS BRADY, MICHELLE BONES,
LON BECHER, E. DAVIDSON,
CINDY O’DONNELL, KRISTEN
VASQUEZ, and LAURA FRAZIER,

Case No. 20-CV-599-JPS

ORDER

Defendants.

Plaintiff Terrance J. Shaw, an inmate confined at Racine Correctional
Institution (“RCI”), filed a pro se complaint under 42 U.S.C. § 1983 alleging
that his rights under the Eighth Amendment, the Americans with
Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”) were violated.1
Plaintiff has paid the full filing fee. This Order screens Plaintiff’s complaint
and resolves his pending motions.
1.

FEDERAL SCREENING STANDARD
Under the Prison Litigation Reform Act, the Court must screen

complaints brought by prisoners seeking relief from a governmental entity
or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint if the prisoner raises claims that are
Although Plaintiff also referenced elder abuse laws in his complaint, he
did not allege a cause of action for elder abuse or any facts that would support
such a claim.
1

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. 28 U.S.C. § 1915A(b).
In determining whether the complaint states a claim, the Court
applies the same standard that applies to dismissals under Federal Rule of
Civil Procedure 12(b)(6). See Cesal v. Moats, 851 F.3d 714, 720 (7th Cir. 2017)
(citing Booker-El v. Superintendent, Ind. State Prison, 668 F.3d 896, 899 (7th
Cir. 2012)). To state a claim, a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). The complaint must contain enough facts, accepted as true,
to “state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows a 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, a plaintiff must
allege that someone deprived him of a right secured by the Constitution or
the laws of the United States, and that whoever deprived him of this right
was acting under the color of state law. D.S. v. E. Porter Cnty. Sch. Corp., 799
F.3d 793, 798 (7th Cir. 2015) (citing Buchanan–Moore v. County of Milwaukee,
570 F.3d 824, 827 (7th Cir. 2009)). The Court construes pro se complaints
liberally and holds them to a less stringent standard than pleadings drafted
by lawyers. Cesal, 851 F.3d at 720 (citing Perez v. Fenoglio, 792 F.3d 768, 776
(7th Cir. 2015)).

Page 2 of 15

2.

PLAINTIFF’S ALLEGATIONS
On August 3, 2017, Dr. Myron Mikaelian noted that Plaintiff had “a

very significant degree of degenerative arthritis involving the left hip.”
(Docket #1 at 2). On December 28, 2018, RCI Heath Services Unit (“HSU”)
Physical Therapist Edward Neiser (“Neiser”) performed CranioSacral
Therapy (“CST”) on Plaintiff. (Id. at 3). Neiser focused on Plaintiff’s
increased pain in his left hip and noted that Plaintiff made outstanding
progress regarding his right total hip arthroplasty (“THA”). But Plaintiff’s
main issue was increased pain in his rehabilitation for the right THA,
leading Neiser to believe Plaintiff would benefit from also having a THA
on the left hip. (Id.) On January 9, 2019, Aurora Health Care staff found that
Plaintiff had “severe left hip osteoarthritic degeneration change with
complete loss of joint space and remodeling of both the femoral head and
acetabulum associated with subcortical sclerosis as well as cyst formation
and osteophyte formation.” (Id.) Additionally, Dr. William Lutes noted that
Plaintiff was doing pretty well after his right THA. (Id.)
Plaintiff filled out a Heath Service form regarding his right and left
hip pain on January 15, 2019. (Id.) Defendants Kim Chaffin (“Chaffin”) and
Jerilyn Taylor (“Taylor”) are nurses at RCI, and Defendant Dr. Joseph
McLean (“Dr. McLean”) is a doctor at RCI. (Id. at 1). On January 17, 2019,
Chaffin noted, “Dr. McLean was consulted on 1-16-19 regarding the
patient’s request to get his left hip replaced. Also consulted with Ed PT at
the same time to acquire progress status on his therapy POC. Both PT and
MD agree that patient must show evidence of rehabilitating his right hip
before the left hip will be replaced. ‘At this time he is not.’” (Id. at 3). That
same day, Taylor noted that, “in order to schedule other hip surgery,
Patient needs to show progression with right hip.” (Id.)
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On January 17, 2019, Plaintiff filed an Inmate Complaint (“IC”)2
alleging that Dr. McLean was violating the ADA, the RA, and the Eighth
Amendment by denying him medical care given that Plaintiff had
experienced extreme left hip pain since 2017. (Id. at 4). On January 29, 2019,
Dr. McLean issued a progress note as to Plaintiff’s concerns of wanting to
see an orthopedic surgeon regarding his left hip, indicating that Plaintiff
could barely ambulate holding onto things because of his left hip and right
knee. (Id.) On January 30, 2019, Plaintiff wrote to Defendants Warden Paul
Kemper (“Kemper”), Health Services Unit Manager Kristen Vasquez
(“Vasquez”), and Assistant Health Services Unit Manager Laura Frazier
(“Frazier”) regarding “HSU staff putting false/lying statements in writing”
in Plaintiff’s HSU documents. In his letter, Plaintiff gave “‘Fair Warning’ to
Nurses and Supervisors that False Documents will be prosecuted in outside
Court.” (Id. at 5). On February 1, 2019, Defendant Michelle Bones (“Bones”),
the Institution Complaint Examiner, issued a letter returning Plaintiff’s IC
The Wisconsin Department of Corrections (“DOC”) maintains an inmate
complaint review system to provide a forum for administrative complaints. Wis.
Admin. Code § DOC 310.04. The inmate must file an offender complaint with the
Institution Complaint Examiner (“ICE”) within fourteen days of the events giving
rise to the complaint. Id. § DOC 310.07(2). The ICE may reject the complaint or
return the complaint to the inmate and allow him or her to correct any issue(s) and
re-file within ten days. See id. § DOC 310.10(5),(6). If the complaint is rejected, the
inmate may appeal the rejection to the appropriate reviewing authority within ten
days. Id. § DOC 310.10(10). If the complaint is not rejected, the ICE issues a
recommendation of either dismissal or affirmance to the Reviewing Authority. Id.
§ DOC 310.10(9),(12). The Reviewing Authority will affirm or dismiss the
complaint, in whole or in part, or return the complaint to the ICE for further
investigation. Id. § DOC 310.11(2). If the ICE recommends, and the Reviewing
Authority accepts, dismissal of the complaint, the inmate may appeal the decision
to the Corrections Complaint Examiner (“CCE”) within fourteen days. Id. §§ DOC
310.09(1), 310.12. The CCE issues a recommendation to the Secretary of the
Department of Corrections, who may accept or reject it. Id. §§ DOC 310.12(2),
310.13.
2

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because there was no indication that Plaintiff had contacted the HSU
managers regarding the issue, which Plaintiff was required to do. Further,
Bones noted that she had consulted with the HSU, and Plaintiff was
scheduled for a follow-up appointment to discuss his plan of care. (Id.)
On February 7, 2019, Plaintiff filed another IC, emphasizing “there
are written/documented Lies from the Defendant staff” and “the further
delay where these officials Refuse and Fail to take action i[s] unnecessarily
prolonging [Plaintiff’s] pain and suffering.” (Id. at 5). Additionally, Plaintiff
was upset because Bones talked to the HSU without accepting the IC.
Plaintiff claims that he “could not sleep and was powerless causing extreme
emotional distress and heart pain” because of Bones’s actions. (Id.) “Their
shenanigans caused the HSU staff to impeach themselves by doing a
complete 180° reversal. As a result the Defendants are caught/busted and
need

to

be

held

accountable

for

their

illegal

behavior.

Their

actions/behavior unnecessarily prolonged [Plaintiff’s] pain and suffering.”
(Id.)
Bones acknowledged Plaintiff’s second IC as RCI-2019-3454 on
February 19, 2019, and Plaintiff’s first IC as RCI-2019-3920 on February 26,
2019. (Id. at 6). She dismissed Plaintiff’s first IC on March 12, 2019. Bones
found that “[u]nder these circumstances, the ICE has no reason to believe
the care and treatment offered is not adequate or not correct, or that a delay
in scheduling or treatment has occurred,” noting that “RCI HSU is the
[Plaintiff’s] primary care provider, and it is the medical provider’s
determination to make decisions regarding what course of treatment.” (Id.)
On April 3, 2019, Defendant Lon Becher (“Becher”), the Reviewing
Authority, agreed with the ICE’s recommendation and dismissed RCI2019-3920. (Id. at 7). On April 4, 2019, Plaintiff appealed to the Corrections
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Complaint Examiner, who received it on April 12, 2019. (Id.) Defendant
Emily Davidson (“Davidson”) at the CCE dismissed the appeal because
Plaintiff’s “medical complaint exceeded 500 words.” (Id.) On May 3, 2019,
Defendant Cindy O’Donnell (“O’Donnell”), of the Office of the Secretary,
dismissed RCI-2019-3920 on the recommendation of the CCE. (Id. at 8).
On March 7, 2019, Bones dismissed Plaintiff’s second IC. On March
22, 2019, Becher dismissed it as well, characterizing it as “patient disagrees
with documentation in their health record.” (Id. at 6–7). Plaintiff appealed
RCI-2019-3454 to the CCE on March 30, 2019, focusing on Bones’s
communication with the HSU before issuing a tracking number. (Id. at 7).
On April 3, 2019, the CCE acknowledged the appeal, and Davidson
dismissed it. (Id.) On April 29, 2019, O’Donnell dismissed RCI-2019-3454.
(Id. at 8).
3.

ANALYSIS
3.1

Personal Involvement of Certain Defendants

Section 1983 “creates a cause of action based on personal liability and
predicated upon fault; thus, liability does not attach unless the individual
defendant caused or participated in a constitutional violation.” Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996). Moreover, the doctrine of respondeat
superior (supervisory liability) does not apply to actions filed under Section
1983. See Pacelli v. deVito, 972 F.2d 871, 877 (7th Cir. 1992). Section 1983 does
not create collective or vicarious responsibility. Id. As explained below,
most of the Defendants do not have any personal liability related to
Plaintiff’s claims.
Plaintiff will not be allowed to proceed against Defendants Kevin
Carr and Travis Brady because the complaint contains no allegations about
them. Additionally, Plaintiff offers no factual allegations regarding
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Vasquez and Frazier’s involvement in his medical care. Individual liability
under Section 1983 “requires personal involvement in the alleged
constitutional deprivation.” Colbert v. City of Chicago, 851 F.3d 649, 657 (7th
Cir. 2017) (quoting Minix v. Canarecci, 597 F.3d 823, 833 (7th Cir. 2010)).
Next, Plaintiff may not proceed on Section 1983 claims against
Bones, Becher, Davidson, and O’Donnell (collectively, the “Administrative
Defendants”), whose only involvement was in the administrative inmate
complaint process. “Ruling against a prisoner on an administrative
complaint does not cause or contribute to the violation.” George v. Smith,
507 F.3d 605, 609 (7th Cir. 2007). If a non-medical prison official does not
ignore the inmate but instead investigates the inmate’s complaint and refers
them to the appropriate medical staff, his duty is at an end. See Berry v.
Peterman, 604 F.3d 435, 440 (7th Cir. 2010). Bones investigated the matters
and deferred to the medical staff’s opinions on what was the best course of
treatment for Plaintiff. The other Administrative Defendants relied upon
Bones’s investigation and recommendation when making their decisions.
Thus, none of the Administrative Defendants ignored Plaintiff, and instead
investigated

his

claims

and

acted

accordingly.

Plaintiff’s

mere

disagreement with their decisions does not a constitutional violation make.
Lastly, Kemper cannot be held liable for the actions of other prison
officials simply because he is the warden. Rather, he is responsible only for
his own conduct. Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995)
(noting that, to be liable, a supervisory defendant “must know about the
conduct and facilitate it, approve it, condone it, or turn a blind eye”).
Plaintiff has not alleged any facts that would attach personal liability to
Kemper.

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3.2

Eighth Amendment

Plaintiff’s

allegations

invoke

his

rights

under

the

Eighth

Amendment, which secures an inmate’s right to medical care. Prison
officials violate this right when they “display deliberate indifference to
serious medical needs of prisoners.” Greeno v. Daley, 414 F.3d 645, 652 (7th
Cir. 2005) (quotation omitted). To sustain such a claim for deliberate
indifference to a serious medical need 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) that this indifference caused him some
injury. Gayton v. McCoy, 593 F.3d 610, 620 (7th Cir. 2010).
The deliberate indifference inquiry has two components: “[t]he
official must have subjective knowledge of the risk to the inmate’s health,
and the official also must disregard that risk.” Id. Deliberate indifference
equates to intentional or reckless conduct, not mere negligence. Berry, 604
F.3d at 440. “Neither medical malpractice nor mere disagreement with a
doctor’s medical judgment is enough to prove deliberate indifference.” Id.
at 441. Further, “[a] medical professional is entitled to deference in
treatment decisions unless no minimally competent professional would
have so responded under those circumstances.” Sain v. Wood, 512 F.3d 886,
894–95 (7th Cir. 2008) (quotation omitted). Rather, a medical professional is
deliberately indifferent only when his decisions are “such a substantial
departure from accepted professional judgment, practice, or standards, as
to demonstrate that the person responsible actually did not base the
decision on such a judgment.” Id. at 895 (quotation omitted). Lastly, to show
that a delay in providing treatment is actionable under the Eighth
Amendment, Plaintiff must also provide evidence that the delay
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exacerbated his injury or unnecessarily prolonged pain. Petties v. Carter, 836
F.3d 722, 730–31 (7th Cir. 2016).
In his complaint, Plaintiff provided facts that show that Defendants
were not deliberately indifferent to his serious medical needs. Am. Nurses'
Ass’n v. State of Illinois, 783 F.2d 716, 724 (7th Cir. 1986) (“A plaintiff who
files a long and detailed complaint may plead himself out of court by
including factual allegations which if true show that his legal rights were
not invaded.”); see also Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003)
(holding that plaintiff “has simply pled himself out of court by saying too
much”); McCormick v. City of Chicago, 230 F.3d 319, 325 (7th Cir. 2000)
(noting that a plaintiff may “plead himself out of court” by alleging facts
establishing that a defendant is entitled to prevail on a motion to dismiss);
Jackson v. Marion County, 66 F.3d 151, 153 (7th Cir. 1995) (explaining that “a
plaintiff can plead himself out of court by alleging facts which show that he
has no claim, even though he was not required to allege those facts. . . .
Allegations in a complaint are binding admissions . . . and admissions can
of course admit the admitter to the exit from the federal courthouse.”);
Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th Cir.1992) (“We are not
required to ignore facts alleged in the complaint that undermine plaintiff's
claim.”).
Specifically, Plaintiff alleges that he filled out a Heath Service form
regarding his right and left hip pain on January 15, 2019. (Docket #1 at 3).
On January 17, 2019, Chaffin noted, “Dr. McLean was consulted on 1-16-19
regarding the patient’s request to get his left hip replaced. Also consulted
with Ed PT at the same time to acquire progress status on his therapy POC.
Both PT and MD agree that patient must show evidence of rehabilitating
his right hip before the left hip will be replaced. ‘At this time he is not.’”
Page 9 of 15

(Id.) The same day, Taylor noted that “in order to schedule other hip
surgery, Patient needs to show progression with right hip.” (Id.) On March
12, 2019, in response to Plaintiff’s IC, Bones found that “[u]nder these
circumstances, the ICE has no reason to believe the care and treatment
offered is not adequate or not correct, or that a delay in scheduling or
treatment has occurred,” noting that “RCI HSU is the [Plaintiff’s] primary
care provider, and it is the medical provider’s determination to make
decisions regarding what course of treatment.” (Id. at 6).
Plaintiff does not allege facts against McLean, Chaffin, and Taylor,
apart from their denial of his requests for different or additional treatment
(i.e., a total left hip replacement). Plaintiff does not have a constitutional
right to receive the treatment of his choosing. See Forbes v. Edgar, 112 F.3d
262, 266–67 (7th Cir. 1997). Plaintiff suggests that McLean, Chaffin, and
Taylor were aware of his medical condition and refused to secure him
surgery, but, again, he has not alleged facts indicating that this was
anything more than his want. Reynolds v. Barnes, 84 F. App’x 672, 674 (7th
Cir. 2003) (“[T]he Constitution does not mandate that a prisoner receive
exactly the medical treatment he desires.”)
Plaintiff has alleged facts that show that McLean, Chaffin, and
Taylor provided him with medical care and determined that it was not the
right time to schedule him for a left hip replacement. Because he was given
medical care by these Defendants, who are medical professionals, to state a
claim under the Eighth Amendment, Plaintiff must allege facts that the
treatment he received was so poor as to demonstrate a complete lack of
medical judgment by these Defendants. Inadvertent error, negligence, gross
negligence and ordinary malpractice are not cruel and unusual punishment
within the meaning of the Eighth Amendment. Vance, 97 F.3d at 992; Snipes
Page 10 of 15

v. DeTella, 95 F.3d 586, 590–91 (7th Cir. 1996). Thus, neither an incorrect
diagnosis nor improper treatment resulting from negligence state an Eighth
Amendment claim. Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997).
Instead, “deliberate indifference may be inferred [from] a medical
professional’s erroneous treatment decision only when the medical
professional’s decision is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate that the
person responsible did not base the decision on such a judgment.” Estate of
Cole v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996). Plaintiff has failed to
allege facts that show Defendants were deliberately indifferent in this case.
Rather, Plaintiff merely disagrees with the course of treatment they
prescribed. Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014) (“Disagreement
between a prisoner and his doctor, or even between two medical
professionals, about the proper course of treatment generally is insufficient,
by itself, to establish an Eighth Amendment violation.”). Therefore, Plaintiff
fails to state an Eighth Amendment claim upon which relief can be granted.
3.3

Americans with Disabilities Act & Rehabilitation Act

Title II of the Americans with Disabilities Act “prohibits a ‘public
entity’ from discriminating against a ‘qualified individual with a disability’
on account of that disability,” and it applies to state prisons. Pa. Dep’t of
Corr. v. Yeskey, 524 U.S. 206, 206 (1998) (quoting 42 U.S.C. § 12132). To
establish an ADA claim, “the plaintiff must prove that he is a ‘qualified
individual with a disability,’ that he was denied ‘the benefits of the services,
programs, or activities of a public entity’ or otherwise subjected to
discrimination by such an entity, and that the denial or discrimination was
‘by reason of’ his disability.” Love v. Westville Corr. Ctr., 103 F.3d 558, 560
(7th Cir. 1996) (quoting 42 U.S.C. § 12132).
Page 11 of 15

The analysis under the Rehabilitation Act, 29, U.S.C. § 794, is
essentially the same, except that the RA includes an additional element,
requiring that the entity denying access receive federal funds. See Jaros v. Ill.
Dep’t of Corr., 684 F.3d 667, 671–72 (7th Cir. 2012); Wagoner v. Lemmon, 778
F.3d 586, 592 (7th Cir. 2015) (ADA and RA standards are “functionally
identical”). To state a claim under the RA, a plaintiff must allege that “(1) he
is a qualified person (2) with a disability and (3) the Department of
Corrections (“DOC”) denied him access to a program or activity because of
his disability.” Jaros, 684 F.3d at 671–72 (citations omitted).
Plaintiff’s ADA and/or RA claim must be dismissed for the following
reasons. First, because Defendants are all individual employees of the
Wisconsin Department of Corrections, they are not subject to suit under the
ADA or RA. Neither Title II of the ADA nor Section 504 of the RA permit
individual capacity suits. Jaros, 684 F.3d at 670 (“[E]mployees of the
Department of Corrections are not amenable to suit under the
Rehabilitation Act or the ADA.”); Barnes v. Young, 565 F. App’x 272, 273 (4th
Cir. 2014) (“Title II of the ADA does not provide for individual capacity
suits against state officials.”) (internal quotation marks and citations
omitted); Badillo v. Thorpe, 158 F.App’x 208, 211 (11th Cir. 2005) (“[T]here is
no individual capacity liability under Title II of the ADA or RA.”); Garcia v.
S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“Neither
Title II of the ADA nor § 504 of the Rehabilitation Act provides for
individual capacity suits against state officials.”).
Second, Plaintiff fails to state an ADA and/or RA claim because he
was not denied “the benefits of the services, programs, or activities of a
public entity” and the DOC did not “den[y] him access to a program or
activity because of his disability.” Plaintiff is claiming that he was denied
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the benefit of obtaining hip surgery. But the decision to schedule Plaintiff’s
hip surgery was at the discretion of the medical professionals involved.
“The ADA does not create a remedy for medical malpractice.” Bryant v.
Madigan, 84 F.3d 246, 249 (7th Cir. 1996); Resel v. Fox, 26 F. App’x 572, 577
(7th Cir. 2001) (“A claim for inadequate medical treatment is improper
under the ADA.”); Ruffin v. Rockford Mem'l Hosp., 181 F. App’x 582, 585 (7th
Cir. 2006) (plaintiff “cannot challenge a medical treatment decision under
the ADA”) (citations omitted); Burger v. Bloomberg, 418 F.3d 882, 883 (8th
Cir. 2005) (“[A] lawsuit under the Rehab Act or the Americans with
Disabilities Act (ADA) cannot be based on medical treatment decisions.”).
There is no other benefit that Plaintiff has alleged he was denied. Thus,
because Plaintiff was not denied a benefit under the ADA or RA, he has
failed to state a claim for a violation of either.
4.

MISCELLANEOUS MOTIONS
Plaintiff filed a motion for leave to proceed without prepaying the

filing fee, (Docket #2), but later paid the full filing fee. Thus, that motion
will be denied as moot. Additionally, Plaintiff’s motion for an order
directing Defendants to reply, (Docket #9), and motion for default
judgment, (Docket #11), must be denied. As the Court had not yet screened
Plaintiff’s complaint, Defendants did not have any obligation to respond
and default judgment would be improper. Finally, Plaintiff’s motion to
withdraw magistrate judge consent, (Docket #13), will be denied as moot.
Defendants have yet to be served in this case, and therefore, this case
remains before the assigned district judge.
5.

CONCLUSION
In sum, Plaintiff has failed to state a claim for deliberate indifference

in violation of the Eighth Amendment. Further, Plaintiff has failed to state
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an ADA or RA claim. Thus, Plaintiff’s case will be dismissed with prejudice
for failure to state a claim.
Accordingly,
IT IS ORDERED that Plaintiff’s motion for leave to proceed without
prepaying the filing fee (Docket #2) be and the same is hereby DENIED as
moot;
IT IS FURTHER ORDERED that this case be and the same is hereby
DISMISSED with prejudice under 28 U.S.C. §1915A(b)(1) because the
complaint fails to state a claim;
IT IS FURTHER ORDERED that the Clerk of Court document that
this inmate has incurred a “strike” under 28 U.S.C. § 1915(g);
IT IS FURTHER ORDERED that Plaintiff’s motion directing
Defendants to reply (Docket #9) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that Plaintiff’s motion for default
judgment (Docket #11) be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that Plaintiff’s motion to withdraw
magistrate judge consent (Docket #13) be and the same is hereby DENIED
as moot.
This order and the judgment to follow are final. A dissatisfied party
may appeal this Court’s decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within thirty days of the
entry of judgment. See Fed. R. of App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the thirty-day deadline. See Fed.
R. App. P. 4(a)(5)(A).
Under limited circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure 59(e) or ask for
Page 14 of 15

relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within
twenty-eight days of the entry of judgment. The Court cannot extend this
deadline. See Fed. R. Civ P. 6(b)(2). Any motion under Federal Rule of Civil
Procedure 60(b) must be filed within a reasonable time, generally no more
than one year after the entry of the judgment. The Court cannot extend this
deadline. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and
determine, what, if any, further action is appropriate in a case.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 31st day of March, 2021.
BY THE COURT:

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

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