Weston, Henry v. Pollard, William et al

Filing 10

ORDER Dismissing 1 Complaint pursuant to Fed. R. Civ. P. 8. (Amended Complaint due 12/19/2014.) Signed by District Judge James D. Peterson on 11/21/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

HENRY WESTON,

v.

Plaintiff,

OPINION & ORDER
14-cv-306-jdp

WARDEN WILLIAM POLLARD,
DR. MANLOVE, MS. BELINDA
SCHRUBBE, and D. LARSON, RN,
Defendant.
Pro se plaintiff Henry Weston, a Wisconsin Department of Corrections prisoner, has
submitted a proposed civil action under 42 U.S.C. § 1983. Plaintiff alleges that the warden and
certain medical staff acted with deliberate indifference to his medical needs in violation of the
Eighth Amendment. Plaintiff has paid an initial partial payment of the filing fee as previously
directed by the court. Accordingly, the next step in this case is for the court to screen the
complaint and dismiss any portion that is legally frivolous, malicious, fails to state a claim upon
which relief may be granted, or asks for money damages from a defendant who by law cannot be
sued for money damages. 28 U.S.C. §§ 1915 & 1915A.
In screening any pro se litigant’s complaint, the court must read the allegations of the
complaint generously. Haines v. Kerner, 404 U.S. 519, 521 (1972). After reviewing the complaint
with this principle in mind, I conclude that plaintiff’s complaint must be dismissed for failure to
satisfy the pleading standards of Federal Rule of Civil Procedure 8, because plaintiff has not
provided sufficient facts and identified the actions taken by each defendant. I will give plaintiff
one opportunity to correct the problems in his complaint.

ALLEGATIONS OF FACT
In his complaint, plaintiff alleges the following facts:
Plaintiff sought medical care for chronic severe pain in his lower back and legs, but he
was denied treatment because he was unable to pay the co-payment. The co-payment issue is
noted in a prison report, concluding: “No exclusion to this co-pay is cited or determined.
Recommendation is made for dismissal.” Dkt. 1-1. Plaintiff further alleges that he is forced to
walk “all around” the prison despite his condition, which is causing life-threatening harm.
Plaintiff alleges very few facts about defendants. For each defendant, plaintiff makes
nearly identical allegations: William Polland (warden), Dr. Manlove, Belinda Schrubbe
(manager of the health service unit), and D. Larson, RN, all (1) had full knowledge of plaintiff’s
condition and lack of medical care because of his inability to pay and (2) did not help plaintiff.
Plaintiff further alleges that Polland was informed by an “Interview/Information-Request”
document of plaintiff’s condition and lack of medical care. Schrubbe is the only defendant who
is included on a prison report. Dkt. 1-1.

ANALYSIS
Plaintiff contends that his Eighth Amendment rights were violated after defendants
became aware of his serious medical needs and made no effort to address them or otherwise
alleviate his pain. The Eighth Amendment affords prisoners a constitutional right to medical
care. Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996) (citing Estelle v. Gamble, 429 U.S. 97,
103 (1976)). Accordingly, courts hold that deliberate indifference to the serious medical needs
of prisoners violates the Eighth Amendment. Id. at 590. Plaintiff must allege facts from which a
jury may reasonably infer (1) that he had a serious medical need and (2) that prison officials
were deliberately indifferent to that need. See Gutierrez v. Peters, 111 F.3d 1364, 1369 (7th Cir.

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1997); see also Board v. Farnham, 394 F.3d 469, 479 (7th Cir. 2005).
I will not consider the merits of his complaint at this time because his pleading does not
satisfy Rule 8 of the Federal Rules of Civil Procedure. Under Rule 8, plaintiff must present “a
short and plain statement of the claim showing that [he] is entitled to relief.” The purpose of
the requirement is “to provide the defendant with ‘fair notice’ of the claim and its basis.” Arnett
v. Webster, 658 F.3d 742, 751 (7th Cir. 2011).
Plaintiff barely alleges enough facts to show that he had a serious medical need, and he
does not allege enough facts to show that defendants were deliberately indifferent to that need.
There is simply not enough detail in the complaint. For this reason, plaintiff’s complaint will be
dismissed, but I will give him the opportunity to file an amended complaint.

A.

Serious medical need
A “serious medical need” may be a condition that a doctor has recognized as needing

treatment or one for which the necessity of treatment would be obvious to a lay person. Johnson
v. Snyder, 444 F.3d 579, 584-85 (7th Cir. 2006). A medical need may be serious if it is lifethreatening, carries risks of permanent serious impairment if left untreated, results in needless
pain and suffering, significantly affects an individual’s daily activities, or otherwise subjects the
prisoner to a substantial risk of serious harm. Gutierrez, 111 F.3d at 1371-73; Farmer v. Brennan,
511 U.S. 825, 847 (1994). Delay in treating painful medical conditions, even if they are not
life-threatening, can support a claim under the Eighth Amendment. Gutierrez, 111 F.3d at 1371.
Taking plaintiff’s allegations as true, his “injuries/condition” and accompanying pain
have been wholly ignored despite his request for medical care. He does not describe his
condition or pain in any detail. However, chronic severe pain is a serious medical need. Smith v.
Knox County Jail, 666 F.3d 1037, 1039-40 (7th Cir. 2012) (“[D]eliberate indifference to

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prolonged, unnecessary pain can itself be the basis for an Eighth Amendment claim.”); Gutierrez,
111 F.3d at 1373. Plaintiff also alleges that walking around the prison without treatment is
worsening his condition. These allegations are sufficient, at least at the screening stage, to show
that plaintiff had a condition serious enough to warrant attention.

B.

Deliberate indifference
Plaintiff must also allege facts showing that defendants acted with “deliberate

indifference” toward his medical needs. Plaintiff does not allege enough facts here. A prison
official can be found deliberately indifferent if “the official knows of and disregards an excessive
risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Plaintiff’s
complaint essentially repeats this law (instead of providing facts), saying that each defendant
knew about plaintiff’s condition and lack of medical care. To demonstrate liability on a claim
under 42 U.S.C. § 1983, plaintiff must allege sufficient facts to show that each defendant
personally caused or participated in the alleged constitutional deprivation. See Palmer v. Marion
County, 327 F.3d 588, 594 (7th Cir. 2003); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir.
1995). Plaintiff’s complaint does not meet this standard.
Although it is not necessary for a plaintiff to plead specific facts, he must articulate
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements” are insufficient to establish a plausible claim. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2007) (citing Twombly, 550 U.S. at 555) (observing that courts “are not
bound to accept as true a legal conclusion couched as a factual allegation”).
I will give plaintiff a deadline to submit an amended complaint in which he describes
how each named defendant violated his rights. It may also be helpful if plaintiff describes and

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explains more fully his serious medical need, although I do not require this. If plaintiff chooses
to amend, the amended complaint should completely replace the original complaint, so plaintiff
should include the allegations from the original complaint he thinks are important, along with
his new allegations providing further explanation of his claim. He should draft his complaint as
if he were telling a story to people who know nothing about his situation. This means that
someone reading the complaint should be able to understand what each defendant did or failed
to do that harmed plaintiff. Someone reading the complaint should be able to answer the
following questions:
•

What were the interactions between plaintiff and each defendant? For
example, what did plaintiff and each defendant say or do to each other (or
what did they fail to say or do)?

•

How did each defendant find out about plaintiff’s medical needs?

•

What did the “Interview/Information-Request” paper (received by Polland)
say?

•

Who told plaintiff that he was denied treatment because he was unable to pay
the co-payment?

•

What are other facts that form the basis for plaintiff’s claim against each
defendant?

Plaintiff must set forth these facts in separate, numbered paragraphs, using short and plain
statements. Plaintiff must write in plain English. There is no need to try to write like a lawyer
might write, because that can make the complaint hard to understand.

ORDER
IT IS ORDERED that:
1) Plaintiff Henry Weston’s complaint is DISMISSED for failure to comply with
Federal Rule of Civil Procedure 8.

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2) Plaintiff may have until December 19, 2014 to submit a proposed amended
complaint addressing the deficiencies in the complaint discussed above. If plaintiff
submits a proposed amended complaint as required by this order, I will take that
complaint under advisement for screening. If plaintiff fails to respond to this order by
the deadline, I will dismiss the case for plaintiff’s failure to state a claim upon which
relief may be granted and assess plaintiff a strike under 28 U.S.C. § 1915(g).
Entered this 21st day of November, 2014.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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