Tempest, Gunnar v. Daouda, Zoure

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
GUNNAR GEORGE TEMPEST,
Plaintiff,
v.
ZOURE DAOUDA,
Defendant.
OPINION and ORDER
25-cv-530-jdp
Plaintiff Gunnar George Tempest, who is incarcerated at Wisconsin Secure Program
Facility (WSPF), alleges that after he had major shoulder surgery in September 2024, he wasn’t
placed in a cell with a disability-accessible shower. Tempest brings Eighth Amendment medical
care and Wisconsin-law medical negligence claims against a nurse practitioner at WSPF,
defendant Zoure Daouda, who made that decision. Tempest is proceeding without counsel.
Because Tempest proceeds without prepaying the filing fee, I must screen the complaint
under 28 U.S.C. § 1915(e)(2)(B) and dismiss any part of it that is frivolous or malicious, fails
to state a claim for which I could grant relief, or seeks money damages from an immune
defendant. I must accept Tempest’s allegations as true and construe them generously, holding
the complaint to a less stringent standard than one a lawyer drafts. Arnett v. Webster,
658 F.3d 742, 751 (7th Cir. 2011). I will dismiss the complaint for failure to state a plausible
claim for relief, but I will allow Tempest to amend the complaint to fix that problem.
ALLEGATIONS OF FACT
Tempest had full shoulder reconstruction surgery because his muscles, ligaments, and
tendons were completely detached from his shoulder bones. After surgery, Zoura denied
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Tempest’s request to be assigned to a “special medical cell.” Dkt. 1 at 2. Special medical cells
have showers with anti-slip floors, handrails, and chairs. Even though the surgeon gave Tempest
a “special packet,” Tempest failed to receive a “recovery packet” or verbal instructions from
WSPF medical staff. Id.
Tempest attempted to shower six days after surgery but he slipped and fell. Tempest
suffered several injuries from the fall, including two ruptured discs in his neck, a concussion,
worsening vision and hearing, and right arm numbness.
ANALYSIS
A. Eighth Amendment
The Eighth Amendment prohibits prison officials from consciously disregarding an
excessive risk to prisoner health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). To
state a claim based on conscious disregard of health or safety, Tempest must plausibly allege
that (1) he faced an objectively serious risk of harm that (2) Zoura consciously disregarded.
See Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006). The basic rule is that “slippery
surfaces . . . in prisons, without more, cannot constitute a hazardous condition of confinement.”
Pyles v. Fahim, 771 F.3d 403, 410–11 (7th Cir. 2014).
Tempest has not plausibly alleged that Zoura consciously disregarded any potentially
serious need for a special shower. By itself, the allegation that Tempest had major shoulder
surgery fails to plausibly suggest that he could not safely shower without accommodations six
days after his surgery. Tempest’s allegations suggest that he had limited use of his right arm,
but that fact alone does not suggest that he was incapable of safely showering without
accommodations, much less that Zoure thought that to be the case. Tempest alleges that his
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surgeon gave him a “special packet,” but he does not describe its contents or allege that the
surgeon recommended accommodations while showering. I will not allow Tempest to proceed
on his Eighth Amendment claim against Zoure.
Tempest also faults medical staff for failing to give him a recovery packet or verbal
instructions even though the surgeon gave him a special packet. I will not allow Tempest to
proceed on this allegation for two reasons. First, Tempest did not name the medical staff
members who committed this conduct as defendants in the complaint’s caption. See Myles v.
United States, 416 F.3d 551, 551 (7th Cir. 2005). Second, more substantively, this allegation
is too vague to plausibly suggest that any medical staff member consciously disregarded his
health or safety. Tempest has not described a recovery packet or explained what instructions
he required or how his failure to receive those instructions or a recovery packet contributed to
his fall or any medical problem. Tempest alleges that the surgeon gave him a special packet
but, again, the packet’s significance is not clear from the complaint.
B. State-law medical negligence claim
Without a federal claim, the court would not have jurisdiction over Tempest’s medical
negligence claim on the basis of diversity because he is a Wisconsin citizen and nothing in the
record suggests Zoure has different citizenship. See Dkt. 1 at 1.
When all federal claims have been dismissed, the general practice in federal court is to
decline to exercise supplemental jurisdiction over the related state-law claims. See Wright v.
Associated Ins. Companies Inc., 29 F.3d 1244, 1251 (7th Cir. 1994). I’ll follow that practice here
and relinquish jurisdiction over Tempest’s medical negligence claim without evaluating its
merits. If Tempest amends his complaint, he may include the state-law claim. If the amended
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complaint states a viable federal claim, I’ll consider whether he states a viable state-law claim
for medical negligence.
CONCLUSION
Tempest hasn’t stated a plausible Eighth Amendment claim based on conscious
disregard of health or safety, but I will give him one opportunity to file an amended complaint
to fix the problems with this claim. In drafting his amended complaint, Tempest should
remember to:
• 	Carefully consider whether he is naming proper defendants and omit defendants
who did not personally participate in or cause a violation of his Eighth
Amendment rights. Tempest must take care to allege what each defendant did,
or failed to do, to violate his Eighth Amendment rights.
• 	Tempest should avoid referring to several defendants together. For instance, if
more than one defendant has taken a particular action that Tempest believes
supports a claim, he should identify each defendant who took that action.
• 	Identify by full name all the individuals whom he wishes to sue in the amended
complaint’s caption.
• 	Omit legal arguments other than explaining what types of claims he wishes to
assert.
ORDER
IT IS ORDERED that:
1. 	Plaintiff Gunnar George Tempest’s complaint, Dkt. 1, DISMISSED for failure to
state a plausible claim for relief.
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2. 	Plaintiff may have until March 2, 2026, to submit an amended complaint that fixes
the problems identified in this order.
3. 	Plaintiff must file his amended complaint on the court’s prisoner complaint form,
which the court will send him with this order. Plaintiff must fill out the form
completely. If plaintiff requires any additional space to allege his claims, he may
submit no more than five supplemental pages. Any text on the form or a
supplemental page must be large enough and have enough spacing between lines
and in the margins for the court to read it easily.
4. 	If plaintiff fails to comply with this order, I may dismiss this case.
5. 	Plaintiff must inform the court of any new address. If he fails to do this and
defendant or the court cannot locate him, this case may be dismissed.
6. 	Plaintiff should keep a copy of all documents for his own files. If he is unable to use
a photocopy machine, he may send out identical handwritten or typed copies of his
documents.
7. 	The clerk of court is directed to send plaintiff a copy of the court’s prisoner
complaint form.
Entered January 30, 2026.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
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