United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 9), DENYING WITHOUT PREJUDICE PLAINTIFF’S MOTION TO APPOINT COUNSEL (DKT. NO. 3), DENYING PLAINTIFF’S REQUEST FOR PETITION FOR A WRIT OF HABEAS CORPUS AD TESTIFICANDUM (DKT. NO. 5), DENYING PLAINTIFF’S MOTION IN LIMINE (DKT. NO. 13), AND SCREENING PLAINTIFF’S COMPLAINT
HON. PAMELA PEPPER United States District Judge
Daniel Anthony Peace, a state prisoner, filed a pro se complaint under 42 U.S.C. §1983, alleging that his civil rights were violated while at Waupun Correctional Institution (Waupun). Dkt. No. 1. The case is before the court on the plaintiff's motion for leave to proceed in forma pauperis (Dkt. No. 9), the plaintiff’s motion to appoint counsel (Dkt. No. 3), the plaintiff’s request for petition for a writ of habeas corpus ad testificandum (Dkt. No. 5), the plaintiff’s motion in limine (Dkt. No. 13), and for screening of the plaintiff’s complaint.
I. MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS
The Prison Litigation Reform Act applies to this case because the plaintiff was incarcerated when he filed his complaint. 28 U.S.C. §1915. That law allows a court to give an incarcerated plaintiff the ability to proceed with his lawsuit without pre-paying the civil case-filing fee, as long as he meets certain conditions. One of those conditions is a requirement that the plaintiff pay an initial partial filing fee. 28 U.S.C. §1915(b). Once the plaintiff pays the initial partial filing fee, the court may allow the plaintiff to pay the balance of the $350 filing fee over time through deductions from his prisoner account. Id.
On May 21, 2015, the court issued an order requiring the plaintiff to pay an initial partial filing fee of $9.62. Dkt. No. 11. The court entered an order on September 14, 2015, allowing the plaintiff to pay that initial partial filing fee out of his prison release account. Dkt. No. 15. The plaintiff paid the fee on September 21, 2015. Accordingly, the court will grant the plaintiff’s motion for leave to proceed without pre-paying the filing fee, and will allow the plaintiff to pay the balance of the $350.00 filing fee over time from his prisoner account, as described at the end of this order.
II. SCREENING OF THE PLAINTIFF’S COMPLAINT
A. Standard for Screening Complaints
The law requires the court 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 part or all of a complaint if the plaintiff 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).
To state a claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). A plaintiff does not need to plead specific facts, and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint, however, that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility 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. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts follow the principles set forth in Twombly. First, the court must “identify pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. A plaintiff must support legal conclusions with factual allegations. Id. Second, if there are well-pleaded factual allegations, courts must “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. §1983, a plaintiff must allege that the defendants: 1) deprived the plaintiff of a right secured by the Constitution or laws of the United States; and 2) acted under color of state law. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff’s pro se allegations, “however inartfully pleaded, ” a liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
B. Facts Alleged in the Complaint
On November 24, 2014, a nurse in the Health Services Unit (HSU) at Waupun treated the plaintiff for the ongoing problem of the plaintiff’s foot getting raw at work. Dkt. No. 1 at 8. The nurse prescribed “an ice bag 4 times a day as needed, hot water soaks in p.m., ” and told the plaintiff to find out what works best to help his foot heal. Id. She completed a Restrictions/Special Needs form for the plaintiff and encouraged him to use his restrictions to find out what worked best to help his foot heal. Id., Exhibit 1.
On December 2, 2014, the plaintiff returned from either the shower or the library, and his cellmate told him the toilet did not work. Id. Defendant CO II Lewis was walking by the plaintiff’s cell, so the plaintiff stopped him and asked him to fix the toilet. Id. Lewis said he would reset the toilet, but he did nothing for a half hour. Id.
The plaintiff called loudly out of his cell for a correctional officer. Id. Defendant CO I Eake appeared, and the plaintiff told her, “CO II Lewis did not fix my toilet, and I have to use the bathroom bad.” Id. Before she fixed the toilet, Eake advised the plaintiff not to yell out of his cell. Id.
Later that night, at medication pass time, the plaintiff asked the correctional officer (either Standish or Eake) to let the sergeant know that the plaintiff needed his medical ice. Id. However, no one returned to the plaintiff’s cell with ice or opened the plaintiff’s cell door so he could get ice. Id.
On December 3, 2014, the plaintiff went to the ice machine around dinner time to get ice, with Sergeant Tanner’s approval. Id. The plaintiff started to fill his ice bag, and then he heard Tanner say, “one scoop.” Id. The plaintiff did not know that Tanner was talking to the plaintiff because Tanner did not address the plaintiff by name. Id. The plaintiff looked around to see who Tanner was talking to and then ...