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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GEORGE K. GROVER,
Plaintiff,
v.                                                                                         Case No. 09-C-501
DR. ENRIQUE LUY,
Defendant.
ORDER
The plaintiff, who is incarcerated at Racine Correctional Institution, filed a pro
se civil rights complaint under 42 U.S.C. § 1983, alleging that his civil rights were
violated.   This matter comes before the court on the plaintiff's petition to proceed in
forma pauperis.
The plaintiff is required to pay the statutory filing fee of $350.00 for this action.
See 28 U.S.C. § 1915(b)(1).   If a prisoner does not have the money to pay the filing
fee, he or she can request leave to proceed in forma pauperis.  The plaintiff has filed
a  certified  copy of his  prison trust account statement for the  six-month  period
immediately preceding the filing of his complaint, as required under  28 U.S.C.
§ 1915(a)(2), and has been assessed and paid an initial partial filing fee of $5.39.
STANDARD OF REVIEW FOR SCREENING A COMPLAINT
The court is required to screen complaints brought by prisoners seeking relief
against a governmental entity or officer or employee of a governmental entity.             28
U.S.C. § 1915A(a).   The court must dismiss a complaint or portion thereof if the




prisoner has raised 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).
To state a cognizable claim  under the federal notice pleading system, a
complaint must provide 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 “does not need
detailed factual allegations,” but it must provide  “more than an unadorned, the-
defendant-unlawfully-harmed-me accusation.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. ___ , 129 S. Ct. 1937, 1949 (2009).
It does not suffice if the complaint offers only  “labels and conclusions,”  “naked
assertions,” or a “formulaic recitation of the elements of a cause of action.”   Iqbal,
129 S. Ct. at 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557).   Instead, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly,
550 U.S. at 570).   This “facial plausibility” standard is satisfied “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.   Accordingly, in reviewing a
complaint, courts reject those allegations that are mere conclusions, and determine
whether  the  facts  alleged                                                                  “plausibly  give  rise  to  an  entitlement  to  relief”  by
“permit[ting] the court to infer more than the mere possibility of misconduct.”   Id. at
1950.
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COMPLAINT ALLEGATIONS
The sole defendant is Dr. Enrique Luy, who is employed as a doctor at Racine
Correctional Institution, where the plaintiff is incarcerated.    The plaintiff has an
inoperable  herniated  disc  and  complains  that  Dr.  Luy  has  been  deliberately
indifferent  to  this  medical  condition.     Specifically,  Dr.  Luy  cut  the  plaintiff’s
methadone dosage from 35 mg/day to 15 mg/day, stating that he was concerned
that the methadone would affect the plaintiff’s liver.   The plaintiff finds his lowered
dosage inadequate, as at 15 mg/day he is in severe pain that has caused a “drastic
rise” in his blood pressure, and other doctors and specialists who were aware of his
liver  problems  did  not  see  the  higher  dosage  of  methadone  as  a  problem.
(Complaint at 3.)   As a remedy, the plaintiff asks the court to order Dr. Luy to give
him the higher amount of methadone that was prescribed by specialists and other
doctors, and  he  also  seeks  to  have  a  jury determine  an  amount of money to
compensate him for his pain and suffering.
ANALYSIS
The Eighth Amendment’s prohibition of cruel and unusual punishment forbids
deliberate indifference to a prisoner’s serious medical needs.  Estelle v. Gamble, 429
U.S. 97, 103-05 (1976).   To establish liability a prisoner must demonstrate both an
objectively serious medical condition, and an official’s deliberate indifference to that
condition.   See Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006).   A medical
condition is objectively serious if a physician  has determined that treatment is
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mandated, or if it is “so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.”   Id. at 584-85 (quoting Gutierrez v. Peters, 111
F.3d 1364, 1373 (7th Cir. 1997)).   A prison official is deliberately indifferent if he
knows of a substantial risk of harm and disregards that risk.  Edwards v. Snyder, 478
F.2d 827, 831 (7th Cir. 2007).
Assuming that the plaintiff’s herniated disc is a serious medical condition, the
plaintiff’s factual allegations do not plausibly suggest that Dr. Luy was deliberately
indifferent to his medical needs.   The plaintiff wants the court to compel Dr. Luy to
reinstate the higher methadone dosage recommended by other doctors, who did not
share Dr. Luy’s concern that the higher dosage would affect the plaintiff’s liver
problems.   However, a prison doctor may exercise his own independent medical
judgment regarding appropriate medical treatment.   See Estate of Cole v. Fromm,
94 F.3d  254,  261  (7th Cir.  1996)  (“Mere differences of opinion among medical
personnel regarding a patient’s appropriate treatment do not give rise to deliberate
indifference.”); see also Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008) (“There
is not one  ‘proper’ way to practice medicine in a prison, but rather a range of
acceptable courses based on prevailing standards in the field.”).   Nothing in the
complaint suggests that Dr. Luy deliberately mistreated the plaintiff, and  “[m]ere
medical malpractice or a disagreement with a doctor’s medical judgment is not
deliberate indifference.”  Edwards, 478 F.3d at 831.  Accordingly, by explaining that
Dr.  Luy  reduced  his  methadone  dosage  out  of  a  possibly  misguided  concern
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regarding its effect on his liver problems, the plaintiff has “simply pled himself out of
court by saying too much.”   Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003).
In Ciarpaglini, the court observed:
Ciarpaglini  doesn’t  simply  allege  that  his  medication  is  being
gratuitously withheld without a reason.   Instead, he says that prison
doctors decided to stop this particular course of treatment . . . he is not
alleging  that  he  was  denied  medical  care.    At  best,  he  alleges  a
disagreement with medical professionals about his needs.   This does
not state a cognizable Eighth Amendment claim. . .
Id.  The plaintiff in this case fails to state a claim for the same reason.
Accordingly,
IT IS ORDERED that the plaintiff's motion for leave to proceed in forma
pauperis (Docket # 2) be and the same is hereby GRANTED;
IT IS  FURTHER  ORDERED  that this action be and the same is hereby
DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) for failure to
state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate
has brought an action that was dismissed   for failure to state a claim.
IT IS FURTHER ORDERED that the Clerk of Court document that this inmate
has incurred a "strike" under 28 U.S.C. §1915(g).
IT IS FURTHER ORDERED that the Secretary of the Wisconsin Department
of Corrections or his designee shall collect from the plaintiff's prison trust account the
$344.61 balance of the filing fee by collecting monthly payments from the plaintiff's
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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 $10.00 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.
IT  IS  FURTHER  ORDERED  that  the  Clerk  of  Court  enter  judgment
accordingly.
IT IS ALSO ORDERED that copies of this order be sent to the warden of the
institution where the inmate is confined and to Corey F. Finkelmeyer, Assistant
Attorney  General, Wisconsin  Department of Justice, P.O. Box  7857, Madison,
Wisconsin, 53707-7857.
Dated at Milwaukee, Wisconsin, this 23rd day of February, 2010.
BY THE COURT:
J.P. Stadtmueller
U.S. District Judge
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