United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, who is representing himself, is a prisoner at
Waupun Correctional Institution (WCI). He filed this lawsuit
under 42 U.S.C. §1983, Dkt. No. 1, along with a motion
for leave to proceed without prepayment of the filing fee,
Dkt. No. 2. This order resolves that request and screens the
Motion for Leave to Proceed without Prepayment of Filing
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. The PLRA allows a court to
give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the 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).
August 2, 2016, the court ordered the plaintiff to pay an
initial partial filing fee of $26.74. Dkt. No. 6. The
plaintiff paid the entire $350 filing fee on August 29, 2016.
Accordingly, the court will grant the plaintiff's motion.
Screening of the Plaintiff's Complaint
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 a complaint or portion thereof 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.
is legally frivolous “‘when it lacks an arguable
basis either in law or in fact.'” Denton v.
Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke
v. Williams, 490 U.S. 319, 325 (1989)). The court may,
therefore, dismiss a claim as frivolous where it is
“based on an indisputably meritless legal theory”
or where the factual contentions are clearly
“baseless.” Neitzke, 490 U.S. at 327.
“Malicious, ” although “sometimes treated
as a synonym for ‘frivolous, ' . . . is more
usefully construed as intended to harass.” Lindell
v. McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
(internal citations omitted).
state a cognizable 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 him 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. Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)).
The Plaintiff's Allegations
August 1, 2014, the plaintiff was examined off-site at the
“U.W.M. Spine Specialist/Clinic” for a
“debilitating” back condition, consisting of a
deteriorating spine with multiple bulging discs and pinched
nerves. Dkt. No. 1 at 5. The clinic recommended that the
plaintiff be moved to a lower tier, a recommendation that WCI
immediately implemented. Id. In addition, on October
1, 2014, health services approved the plaintiff for an
elevator pass so that he could go to medical and mental
health treatments without having to use the stairs.
November 13, 2014, the plaintiff was placed in segregation.
Id. The plaintiff notified the segregation officers
of his elevator pass and alerted them that the Special Needs
Committee had approved his use of various items as a result
of ongoing medical problems. Id. at 6. These items
included an extra pillow (for his back), a washcloth and
towel, adult diapers, and clean linen as needed. Id.
The Committee had approved the washcloth, towel, adult
diapers, and clean linen because the plaintiff suffers from