Cose, Roger v. Schrubbe, Belinda et al

Filing 14

ORDER denying 11 Motion for Reconsideration. Signed by District Judge James D. Peterson on 2/5/2016. (jef),(ps)

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

ROGER ALLEN COSE,
ORDER
Plaintiff,
v.

14-cv-540-jdp

MARY GORSKE and
CHARLES LARSON,
Defendants.

On December 22, 2015, I granted pro se plaintiff Roger Allen Cose leave to proceed
with his Eighth Amendment deliberate indifference claim for failure to treat a fractured fibula
as alleged against defendants Mary Gorske and Charles Larson; I denied plaintiff leave to
proceed against Belinda Schrubbe. Dkt. 6. Now plaintiff moves the court to reconsider its
decision to dismiss Schrubbe from this case. Dkt. 11. For reasons discussed here, I will deny
plaintiff’s motion.
In support of his motion for reconsideration, plaintiff alleges that Schrubbe did know
about plaintiff’s serious medical condition (a fractured fibula), disregarded it, and, in so
doing, deprived plaintiff of important medical treatment. Plaintiff claims that Schrubbe
learned about plaintiff’s fractured fibula when defendant Gorski filed a “Prior Authorization
for Non-Urgent Care” and attached plaintiff’s X-rays; Schrubbe received a copy of the
documents. Plaintiff argues that Schrubbe should have authorized appropriate medical
treatment after she reviewed these forms.
The forms Schrubbe allegedly received requested left shoe lifts for plaintiff to treat his
left leg pain. The forms documented plaintiff’s severe left lower extremity injury (from 1976)
and the surgeries that followed. The forms indicated that plaintiff had been using a left shoe

lift before his incarceration with the DOC and that he wanted to use a lift again.
Significantly, it appears that the person who reviewed the request (not Schrubbe, although I
am unable to make out the signature) approved it.
Even if I were to assume that Schrubbe had the opportunity to review plaintiff’s Xrays, as plaintiff now claims, plaintiff still has not articulated how Schrubbe was deliberately
indifferent to his severe medical need. Plaintiff has not alleged any facts that tend to suggest
that Schrubbe made any decisions or took any actions (or lack thereof) that would constitute
deliberate indifference to plaintiff’s medical needs. To the contrary, it does not appear the
Schrubbe played any direct role in plaintiff’s treatment, or lack thereof. The “new”
information plaintiff has submitted in support of his motion for reconsideration simply
indicates that Schrubbe had the opportunity to review a request for non-urgent care to treat
plaintiff’s leg pain and the approval of that request. Plaintiff has not offered any new facts
sufficient to state an Eighth Amendment claim directly against defendant Schrubbe in her
individual capacity.
Plaintiff also attempts to implicate Schrubbe in her supervisory capacity. However, as
was the case previously, plaintiff’s allegations are vague and conclusory. The fact that
Schrubbe is generally “responsible for the proper training of staff” is not enough to show that
Schrubbe “knowingly, willfully, or at least recklessly caused the alleged deprivation by his
action or failure to act.” Rascon v. Hardiman, 803 F.2d 269, 273-74 (7th Cir. 1986). Because
plaintiff has not offered new facts sufficient to establish that Schrubbe purposefully or
recklessly deprived him of adequate medical care, he has failed to state an Eighth
Amendment deliberate indifference claim against Schrubbe based on her role as supervisor.

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Plaintiff’s motion for reconsideration also includes allegations concerning his requests
for ibuprofen, the fact that health services required him to purchase his own ibuprofen, and
the fact that his file contained photocopies rather than originals. As I previously held, none of
these tangential factual allegations gives rise to an independent claim for relief or directly
implicates any of the named defendants.

ORDER
IT IS ORDERED that plaintiff Roger Allen Cose’s motion for reconsideration of the
court’s December 22, 2015, screening order, Dkt. 11, is DENIED.
Entered February 5, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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