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Jerome v. Murphy

United States District Court, E.D. Wisconsin

June 13, 2016

NEVADA JEROME, Plaintiff,
v.
PATRICK MURPHY, MD, and JOHN AND JANE DOES, Defendants.

          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 COMPLAINT

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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.

         I. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 3)

         The 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.

         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 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 (citation omitted).

         In 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.

         To 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)).

         B. Facts Alleged in the Complaint

         The 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.

         The 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.

         The 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 ...


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