Wiseman v. Wilkinson et al, No. 3:2020cv00620 - Document 6 (N.D. Ind. 2020)
Court Description: OPINION AND ORDER: The court GRANTS Ivernon D. Wiseman until 10/30/2020 to file an amended complaint and CAUTIONS Ivernon D. Wiseman if he does not respond by the deadline, this case will be dismissed pursuant to 28 U.S.C. § 1915A without further notice because the current complaint does not state a claim for which relief can be granted. Signed by Judge Damon R Leichty on 9/22/2020. (bas)
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Wiseman v. Wilkinson et al Doc. 6 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION IVERNON D. WISEMAN, Plaintiff, v. CAUSE NO. 3:20-CV-620-DRL-MGG WILKINSON et al., Defendants. OPINION & ORDER Ivernon D. Wiseman, a prisoner without a lawyer, filed a vague complaint alleging a heart valve became infected with streptococcus bacteria after a tooth extraction at the Westville Correctional Facility on August 19, 2019, which necessitated valve replacement surgery on March 30, 2020. ECF 2. “A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks and citations omitted). Under 28 U.S.C. § 1915A, the court still must review the merits of a prisoner complaint and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against an immune defendant. Based on his description, it sounds like Mr. Wiseman is alleging he had endocarditis, “an inflammation of the inner lining of the heart. The most common type, bacterial endocarditis, occurs when germs enter your heart. These germs come through your bloodstream from another part of your body, often your mouth. Bacterial Dockets.Justia.com endocarditis can damage your heart valves.” Endocarditis, U.S. National Library of Medicine, https://medlineplus.gov/endocarditis.html. However, “[i]t is rare in healthy hearts.” Id. The complaint does not mention if he had any prior heart problems, and if so, what kind. For patients whose heart conditions put them at the highest risk for adverse events from [endocarditis], the American Heart Association (AHA) recommends antibiotics before certain dental procedures. These include procedures that involve manipulation of gingival tissue or the periapical region of teeth, or perforation of the oral mucosa. However, for most patients, antibiotics are not needed. Endocarditis Fact Sheet, American Heart Association, https://www.heart.org/- /media/data-import/downloadables/0/8/2/pe-abh-what-is-infective-endocarditisucm_300297.pdf. The complaint does not mention if he took antibiotics in conjunction with the removal of his tooth on August 17, 2019. However, [t]he practice of routinely giving antibiotics to patients at risk for endocarditis prior to a dental procedure is not recommended EXCEPT for patients with the highest risk of adverse outcomes [because] only a small number of [endocarditis] cases might be prevented by antibiotic prophylaxis prior to a dental procedure [so it] should be reserved ONLY for patients with cardiac conditions associated with the highest risk . . ..” Endocarditis Wallet Card, American Heart Association, https://www.heart.org//media/data-import/downloadables/c/b/3/pe-pdf-chdinfectiveendocarditiswalletcarducm_307644.pdf?la=en&hash=5820A3F9A2A8D4CFA104B1CA4BF8C386831DA712 (emphasis in original). Mr. Wiseman alleges Dr. Wilkinson began extracting his tooth on August 19, 2019, but stopped and called Dr. Pearcy to finish. It is unclear why he stopped. Mr. Wiseman 2 alleges the dental tools were unsanitary, but it is unclear when and how he believes they became contaminated. He speculates this contamination caused his heart problem, but endocarditis has many causes including, “[e]veryday oral activities [such as] brushing your teeth, . . . especially if you don’t floss or your teeth and gums aren’t healthy. An infection . . . such as a skin sore. Other medical conditions, such as gum disease, a sexually transmitted infection or certain intestinal disorders[, c]atheters[, and] needles used for tattooing or body piercing.” Endocarditis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/endocarditis/symptomscauses/syc-20352576?p=1. It is unclear why he believes his heart condition is related to this tooth extraction and not one of these other causes. Mr. Wiseman names four health care providers who appear to have been involved in diagnosing and treating his heart condition. However, it is unclear how they were involved with his care and what he believes they did wrong from the time he put in a healthcare request slip on October 18, 2019, until he went to the hospital on March 23, 2020. Mr. Wiseman needs to explain what he told each of them, when he told them, what they did in response, and why he believes they were deliberately indifferent. Finally, he names Warden John Galipeau because he is “responsible for general operation, custody, regulation, and policies of Westville . . . .” ECF 2 at 5. However, there is no general respondeat superior liability under 42 U.S.C. § 1983. “Only persons who cause or participate in the violations are responsible.” George v. Smith, 507 F.3d 605, 609 (7th Cir. 2007). “[P]ublic employees are responsible for their own misdeeds but not for anyone 3 else’s.” Burks v. Raemisch, 555 F.3d 592, 596 (7th Cir. 2009). This complaint doesn’t allege the Warden was personally involved in either his dental or medical care. This complaint doesn’t state a claim for which relief can be granted. Nevertheless, he may file an amended complaint because “[t]he usual standard in civil cases is to allow defective pleadings to be corrected, especially in early stages, at least where amendment would not be futile.” Abu-Shawish v. United States, 898 F.3d 726, 738 (7th Cir. 2018). To file an amended complaint, he needs to write this cause number on a Pro Se 14 (INND Rev. 2/20) Prisoner Complaint form which is available from his law library. After he properly completes and signs that form, he needs to send it to the court. For these reasons, the court: (1) GRANTS Ivernon D. Wiseman until October 30, 2020 to file an amended complaint; and (2) CAUTIONS Ivernon D. Wiseman if he does not respond by the deadline, this case will be dismissed pursuant to 28 U.S.C. § 1915A without further notice because the current complaint does not state a claim for which relief can be granted. SO ORDERED. September 22, 2020 s/ Damon R. Leichty Judge, United States District Court 4
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