Whitcomb v. Sukoway

Docket Number23-cv-385-pp
Decision Date25 May 2023
CourtU.S. District Court — Eastern District of Wisconsin



Andrew T. Whitcomb, who is incarcerated at Waupun Correctional Institution and is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants failed to provide him proper treatment for his ventral hernia and are refusing to schedule him for necessary surgery. This decision resolves the plaintiff's motion for leave to proceed without prepaying the filing fee, dkt. no. 2, screens his complaint, dkt. no. 1, orders the defendant to respond to the plaintiff's first request for injunctive relief (captioned as an “order to show cause for an [sic] preliminary injunction,” dkt. no. 3, and denies as moot the plaintiff's second motion for injunctive relief, dkt no. 5.

I. Motion for Leave to Proceed without Prepaying the Filing Fee (Dkt. No. 2)

The Prison Litigation Reform Act (PLRA) applies to this case because the plaintiff was incarcerated when he filed his complaint. See 28 U.S.C. §1915(h). The PLRA lets the court allow an incarcerated plaintiff to proceed with without prepaying the civil case filing fee. 28 U.S.C. §1915(a)(2). When funds exist, the plaintiff must pay an initial partial filing fee. 28 U.S.C. §1915(b)(1). He then must pay the balance of the $350 filing fee over time, through deductions from his prison trust account. Id.

On April 12, 2023, the court ordered the plaintiff to pay an initial partial filing fee of $1.96. Dkt. No. 8. The court received that fee on May 2, 2023. The court will grant the plaintiff's motion for leave to proceed without prepaying the filing fee and will require him to pay the remainder of the filing fee over time in the manner explained at the end of this order.

II. Screening the Complaint
A. Federal Screening Standard

Under the PLRA, the court must screen complaints brought by incarcerated persons seeking relief from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. §1915A(a). The court must dismiss a complaint if the incarcerated person raises 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 determining whether the complaint states a claim, the court applies the same standard that it applies when considering whether to dismiss a case 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 to relief that is plausible on its face.' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic 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 Cty. Sch. Corp., 799 F.3d 793, 798 (7th Cir. 2015) (citing Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009)). The court construes liberally complaints filed by plaintiffs who are representing themselves and holds such complaints 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)).

B. The Plaintiff's Allegations

The complaint names as defendants Dr. Sukoway, Advanced Practice Nurse Prescriber Judy Fields and John or Jane Doe Managers of the Health Services Unit (HSU). Dkt. No. 1 at 1. The complaint alleges that all the defendants work at Waupun, where the plaintiff remains incarcerated. Id.

The plaintiff alleges that he has a large hernia that is causing him pain, but that Dr. Sukoway has failed to “give [him] anything to help with the pain.” Id. at ¶¶1-2. He alleges that on November 7, 2022, Dr. Karen Reynolds, a surgeon at Waupun Memorial Hospital (who is not a defendant), informed the plaintiff that he needed immediate surgery. Id. at ¶4. The plaintiff alleges that Dr. Reynolds's order was sent back to Waupun, but that the defendants have refused to schedule him for surgery to treat his hernia and pain. Id. at ¶¶3, 5.

The plaintiff alleges that by refusing him the surgery, the defendants have put his life and safety at risk due to possible complications from the hernia. Id. at ¶6. He says he has tried “to kill [him]self due to the amount of pain [he is] in everyday and as a way to escape dealing with it.” Id. He alleges that Dr. Sukoway told him he “did it to [him]self” because of the number of times he has required surgery to remove a foreign body that the plaintiff ingested in an attempt to kill himself. Id. at ¶7. The plaintiff claims that Dr. Sukoway is “using [his] mental health against [him].” Id. He says Dr. Sukoway told him that he needs “to go for [two] years with [no] self harm or suicide attempts before they will even consider granting [him] the surgery.” Id. at ¶8. The plaintiff asserts that that policy violates his rights and “is unethical and demoralizing along with inhumane.” Id. The plaintiff says defendant Fields and other unnamed members of the HSU and Psychological Services Unit “think [his] life is at risk and that [he] may do something to kill [him]self in an attempt to get away from hav[]ing to deal with this any[]more.” Id. at ¶9.

Along with the complaint, the plaintiff filled a document titled “Order to Show Cause for An [sic] Preliminary Injunction.” Dkt. No. 3. He asks the court to order the Department of Corrections to give him the surgery and to stop delaying and blocking his access to the surgery. Id. at 3. The plaintiff re-filed this motion six days later, on March 30, 2023. Dkt. No. 5. He attached to the motions for injunctive relief identical copies of his medical records. Dkt. No. 31; Dkt. No. 5-1.[1] The records include the report from Dr. Reynolds recommending the plaintiff be scheduled “ASAP” for “open ventral hernia” surgery. Dkt. No. 3-1 at 1. Also included are progress notes from the prison. The most recent is a November 14, 2022 report from defendant Fields, who saw the plaintiff “for follow up [after his] recent hospitalization.” Id. at 3. Fields notes that the plaintiff had had three “ER visits in the last month for abdominal pain, nausea, vomiting.” Id. She noted the plaintiff's pain, which was not alleviated by Tylenol, and his concern about an obstruction. Id. The plaintiff reported “that he is trying to keep himself from doing anything to himself that would make it an emergency,” but that “if [he] die[s], it will solve everything, the pain, being in prison.” Id. Fields reported her concern “that patient's mental state will cause patient to do something drastic due to abdominal pain that may cause death.” Id. She discussed his case with the HSU Manager, who she refers to only as “Rob,” and Rob called the Psychological Services Unit to discuss the situation with them. Id. She also sent a message to Dr. Sukoway with updated information about the plaintiff's ER visits and surgical recommendation. Id.

The attachments also include earlier medical notes from visits on November 10 and October 7, 2022. Id. at 5-7. During the November 10, 2022 visit, the plaintiff was “rocking back a[]nd forth” and moaning, so the provider (not a defendant) had difficulty assessing his blood pressure and bowel sounds. Id. at 5. The plaintiff reported vomiting several times that day and being unable to keep food or fluids down. Id. The provider noted that the plaintiff's ventral hernia was “larger than grapefruit and firm,” and that the provider was unable to reduce the hernia. Id. The October 7, 2022 note is a letter from another nondefendant provider at Waupun about the plaintiff's ultrasound results. Id. at 7. That provider writes, “As expected, you have a large ventral hernia containing bowel.” Id. He says he placed an order for a surgical consult (which the plaintiff received a month later with Dr. Reynolds), and he advised the plaintiff to contact the HSU if he noticed “any signs of bowel obstruction.” Id.

The plaintiff seeks monetary damages for his pain, suffering and mental and emotional harm. Dkt. No. 1 at 2.

C. Analysis

The court reviews the plaintiff's allegations under the Eighth Amendment, which “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). Not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth...

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