United States District Court, E.D. Wisconsin
DECISION AND ORDER DENYING AS MOOT THE
PLAINTIFF’S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE (DKT. NO. 3), DENYING HIS MOTION
TO APPOINT COUNSEL (DKT. NO. 5), AND SCREENING HIS
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, a state prisoner who is representing himself,
filed a complaint under 42 U.S.C. §1983, alleging that
the defendants violated his civil rights while the plaintiff
was incarcerated at the Oshkosh Correctional Institution. The
case is before the court on the plaintiff's motion for
leave to proceed without prepaying the filing fee (Dkt. No.
3), his motion for the appointment of counsel (Dkt. No. 5),
and for screening of his complaint.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 3)
Prison Litigation Reform Act applies to this action 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. On May 24, 2016, the
plaintiff filed a motion for leave to proceed without
prepayment of the filing fee (Dkt. No. 3); however, on May
26, 2016, the court concluded that the plaintiff had
sufficient funds in his prisoner trust account to pay the
full filing fee (Dkt. No. 8). On June 10, 2016, the plaintiff
paid the full civil case filing fee of $400. Because the
plaintiff has paid the full filing fee, the court denies his
motion as moot.
SCREENING OF THE PLAINTIFF’S COMPLAINT
Standard for Screening Complaints
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.
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 Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). However, a complaint
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
considering whether a complaint states a claim, courts follow
the principles set forth in Twombly. First, they
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.
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that the defendants: 1) deprived 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 North 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. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
Facts Alleged in the Complaint
plaintiff alleges that while he was an inmate at the Oshkosh
Correctional Institution (“OCI”), he was coughing
up blood; he says this was “reported in March and April
of 2014.” Dkt. No. 1 at 3. Defendant Murphy ordered an
x-ray. Id. On April 30, 2014, the radiology report
indicated, “left perihilar focal infiltrate and/or
mass. Follow-up chest study is advised.” Id.
The plaintiff alleges that Murphy did not follow up, instead
ignoring the report. Id.
plaintiff states that between April 30, 2014, and April 8,
2015, he wrote six to eight service requests to the
defendants, in which he informed the defendants that he was
“bleeding all the time, complaining of breathing
problems and coughing up blood and could they do something
about it.” Id. The plaintiff alleges that
Murphy and other unidentified defendants continued to ignore
the report. Id.
plaintiff alleges that finally, on April 16, 2015, Murphy
ordered a test, the results of which were “left
perihilar focal infiltrate and/or mass grow 5.1 cm.”
Id. The plaintiff states that a CT scan was
performed on April 16, 2015, after which Murphy told the
plaintiff that the mass ...