Wildman v. Oshkosh Correctional Institution et al

Filing 8

ORDER signed by Judge Brett H Ludwig on 9/24/24 granting 2 Motion for Leave to Proceed Without Prepayment of the Filing Fee. On or before October 24, 2024, Wildman may file an amended complaint that cures the defects in the original complaint as described in this decision. (cc: all counsel and mailed to warden & pro se party w/form & guide)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ROBERT W. WILDMAN,
Plaintiff,
v.

Case No. 24-cv-1155-bhl

OSHKOSH CORRECTIONAL INSTITUTION,
DR. MURPHY, and
NURSE STEUBER,
Defendants.
SCREENING ORDER
Plaintiff Robert Wildman, who is currently serving a state prison sentence at Oshkosh
Correctional Institution and representing himself, filed a complaint under 42 U.S.C. §1983,
alleging that his civil rights were violated. This matter comes before the Court on Wildman’s
motion for leave to proceed without prepaying the full filing fee and to screen the complaint.
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE
Wildman has requested leave to proceed without prepaying the full filing fee (in forma
pauperis). A prisoner plaintiff proceeding in forma pauperis is required to pay the full amount of
the $350.00 filing fee over time. See 28 U.S.C. §1915(b)(1). As required under 28 U.S.C.
§1915(a)(2), Wildman has filed a certified copy of his prison trust account statement for the sixmonth period immediately preceding the filing of his complaint and has been assessed and paid an
initial partial filing fee of $13.04. Wildman’s motion for leave to proceed without prepaying the
filing fee will be granted.

SCREENING OF THE COMPLAINT
The Court has a duty to review any complaint in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity and must dismiss any
complaint or portion thereof if the prisoner has raised any 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. 28 U.S.C. §1915A(b). In screening a
complaint, the Court must determine whether the complaint complies with the Federal Rules of
Civil Procedure and states at least plausible claims for which relief may be granted. To state a
cognizable claim under the federal notice pleading system, a 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
must be at least sufficient to provide notice to each defendant of what he or she is accused of doing,
as well as when and where the alleged actions or inactions occurred, and the nature and extent of
any damage or injury the actions or inactions caused.
“The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)). “The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. A complaint must contain
sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
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. at 556. “[T]he complaint’s allegations must be enough to raise a right to relief above
the speculative level.” Id. at 555 (internal quotations omitted).
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ALLEGATIONS OF THE COMPLAINT
According to Wildman, in September 2021, Dr. Beede McKinney, who works at the
Rhinelander/Woodruff Clinics, diagnosed Wildman with neuropathy and prescribed tramadol as a
treatment. Wildman asserts that he has not received tramadol since he was incarcerated more than
a year ago. He also asserts that, in February 2017, Dr. McKinney diagnosed Wildman with an
aspirin allergy, but Defendants Dr. Murphy and Nurse Stueber prescribed it anyway. Wildman
seeks damages and wants the Department of Corrections to closely review the medical records of
new inmates. He also asks that, given his prior diagnosis, he be re-examined for neuropathy.
THE COURT’S ANALYSIS
“[T]he Eighth Amendment, as the Supreme Court has interpreted it, protects prisoners from
prison conditions that cause the wanton and unnecessary infliction of pain, including . . . grossly
inadequate medical care.” Gabb v. Wexford Health Sources, Inc., 945 F.3d 1027, 1033 (7th Cir.
2019) (quoting Pyles v. Fahim, 771 F.3d 403, 408 (7th Cir. 2014)) (internal quotations omitted).
The Court uses a two-part test to evaluate whether medical care amounts to cruel and unusual
punishment; it asks: 1) “whether a plaintiff suffered from an objectively serious medical condition”
and 2) “whether the individual defendant was deliberately indifferent to that condition.” Id.
(quoting Petties v. Carter, 836 F.3d 722, 727-28 (7th Cir. 2016) (en banc)). The complaint does
not contain sufficient factual matter from which the Court can reasonably infer that Wildman
satisfies either prong of the standard. Accordingly, the complaint fails to state a claim.
With regard to the first prong of the standard, Wildman alleges only that, three years ago,
a doctor in the community diagnosed him with neuropathy. Wildman does not explain what
neuropathy is or what symptoms he was experiencing prior to receiving that diagnosis. And, more
importantly, Wildman does not explain what symptoms he currently is experiencing. The Court
cannot reasonably infer based solely on a three-year old diagnosis that Wildman continues to suffer
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from an objectively serious medical condition. With regard to the second prong of the standard,
Wildman alleges only that Defendants refused to continue his prescription for tramadol. “But
different views among physicians about reasonable treatments does not establish deliberate
indifference or entitle an inmate to his preferred treatment.” Franklin v. Hannula, 850 F. App’x
436, 439 (7th Cir. 2021). Wildman does not allege what he communicated to Defendants about
his symptoms, when or how often he communicated with Defendants, or how Defendants
responded to him. Thus, even assuming Wildman suffers from a serious medical condition, the
Court cannot reasonably infer that Defendants were deliberately indifferent to that condition
simply because they did not provide Wildman with the medication of his choice.
Finally, Wildman alleges that Defendants were deliberately indifferent to his aspirin
allergy, which was documented by a doctor in the community in 2017. Wildman does not allege
that he informed Defendants that he was allergic to aspirin or that they knew he was allergic to
aspirin when they prescribed it; he merely suggests that they should have noted the allergy in his
medical records. But, even assuming Defendants had access to Wildman’s medical records, their
failure to take note of a medical record from seven years prior amounts to, at most, negligence,
which is not sufficient to support a constitutional claim. See Vance v. Peters, 97 F.3d 987, 992
(7th Cir. 1996) (“[A] defendant’s inadvertent error, negligence or even ordinary malpractice is
insufficient to rise to the level of an Eighth Amendment constitutional violation.”).
The Court will give Wildman an opportunity to file an amended complaint that cures the
deficiencies identified in this decision. Wildman should draft his amended complaint as if he is
telling a story to someone who knows nothing about his situation. This means that he should
explain the severity of the symptoms he was experiencing, to whom and how often he complained
about his symptoms, and what that person did or did not do in response. Wildman should set forth
his allegations in short and plain statements, and he should ensure that his amended complaint can
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be understood by someone who knows nothing about the facts of his case. An amended complaint
will replace the original complaint and should 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). If an amended complaint is received, the Court will screen it as required
by 28 U.S.C. §1915A. If an amended complaint is not received, the Court will dismiss this case
based on Wildman’s failure to state a claim in his original complaint.
IT IS THEREFORE ORDERED that Wildman’s motion for leave to proceed in forma
pauperis (Dkt. No. 2) is GRANTED.
IT IS FURTHER ORDERED that on or before October 24, 2024, Wildman may file an
amended complaint that cures the defects in the original complaint as described in this decision.
IT IS FURTHER ORDERED that the Clerk’s Office mail Wildman a blank prisoner
amended complaint form and a copy of the guide entitled “Answers to Prisoner Litigants’ Common
Questions,” along with this order.
IT IS FURTHER ORDERED that the agency having custody of Wildman shall collect
from his institution trust account the $336.96 balance of the filing fee by collecting monthly
payments from Wildman’s prison trust account in an amount equal to 20% of the preceding
month’s income credited to the prisoner’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
Wildman is transferred to another institution, the transferring institution shall forward a copy of
this Order along with Wildman’s remaining balance to the receiving institution.
IT IS FURTHER ORDERED that copies of this order be sent to the officer in charge of
the agency where Wildman is located.

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IT IS FURTHER ORDERED that plaintiffs who are inmates at Prisoner E-Filing
Program institutions must submit all correspondence and case filings to institution staff, who will
scan and e-mail documents to the Court. The Prisoner E-Filing Program is mandatory for all
inmates of Green Bay Correctional Institution, Waupun Correctional Institution, Dodge
Correctional Institution, Wisconsin Secure Program Facility, Columbia Correctional Institution,
and Oshkosh Correctional Institution. Plaintiffs who are inmates at all other prison facilities must
submit the original document for each filing to the Court to the following address:
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.
Wildman 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 on September 24, 2024.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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