Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burgess v. Eckstein

United States District Court, E.D. Wisconsin

October 19, 2016

EDWARD B. BURGESS, Plaintiff,
v.
SCOTT ECKSTEIN, LT. LENZ, C.O. BRUNNER, JEAN LUTSEY, DR. SAUVEY, DR. KZSHENA, KATHY LENENS, NURSE UTTER, NURSE HUEMPHFN, NURSE MALSTEEN, J. LABELLE, J. PERTTU, A. BOATWRIGHT, CINDY O'DONNELL, Defendants.

          ORDER

          WILLIAM E. DUFFIN U.S. MAGISTRATE JUDGE

         Plaintiff Edward B. Burgess, a Wisconsin state prisoner who is representing himself, filed a civil rights action under 42 U.S.C. § 1983 alleging that the defendants violated his Eighth Amendment rights at the Green Bay Correctional Institution. This matter comes before the court on Burgess's motion for leave to proceed without prepayment of the filing fee (ECF No. 2), for screening of the complaint (ECF No. 1), and on Burgess's motion to appoint counsel (ECF No. 4).

         Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (“PLRA”) allows inmates to proceed with their lawsuits in federal court without pre-paying the full filing fee. 28 U.S.C. § 1915. Inmates must comply with certain requirements, one of which is to pay an initial partial filing fee. 28 U.S.C. § 1915(b). The court assessed an initial partial filing fee of $32.80. (ECF No. 7). Burgess paid that amount on September 19, 2016. Therefore, the court will grant his motion for leave to proceed without prepayment of the filing fee.

         Screening of the Complaint

         The PLRA requires courts 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 prisoner has raised claims that are legally “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or 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). The complaint need not plead specific facts and need only provide “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)). However, a complaint that offers mere “labels and conclusions” or a “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).

         The complaint must contain sufficient facts that, when accepted as true, “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (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's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         Federal courts follow the two-step analysis set forth in Twombly to determine whether a complaint states a claim. Iqbal, 556 U.S. at 679. First, the court determines whether the plaintiff's legal conclusions are supported by factual allegations. Id. Legal conclusions not supported by facts “are not entitled to the assumption of truth.” Id. Second, the court determines whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” Id. The court gives 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)).

         Factual Allegations

         In November 2012, Burgess was an inmate at the Fox Lake Correctional Institution (“FLCI”). (ECF No. 1, ¶ 16.) At that time, FLCI doctors had diagnosed him with “chronic plantar fasciitis feet.” (Id., ¶ 3.) The condition causes painful bone spurs on the bottom of an individual's feet, and Burgess often could not walk for days when the condition flared up. (Id., ¶¶ 3, 10, 15, 41, 42.) The doctors at FLCI ordered several medical items to relieve the pain: proper orthotics and shoes, shoe inserts, a splint brace, a cane, and heel caps. (Id., ¶¶ 3-10.)

         On or about June 15, 2015, the Department of Corrections (“DOC”) transferred Burgess from FLCI to Green Bay Correctional Institution (“GBCI”). (Id., ¶ 16.) The next day, on June 16, 2015, Burgess “was given his state issued Adidas shoes for his planter fasciitis feet.” (Id., ¶ 17.) The complaint mentions several different types of shoes, “black NB tennis shoes” (id., ¶ 6), “black apex shoes” (id., ¶ 11), “black Bob Barker Boots” (id.), “Adidas shoes” (id., ¶ 17, 34, 36-37), “diabetic shoes” (id., ¶¶ 21, 24, 29), and “special tennis shoes” (id., ¶¶ 22, 29), and it is not entirely clear whether they are the same shoe or different shoes.

         In any event, Burgess appears to have received at least one pair of shoes-what he refers to as “diabetic shoes”-in addition to the “Adidas shoes” he received on June 16, 2015. (See id., ¶¶ 21, 24, 29.) The diabetic shoes were inadequate for his plantar fasciitis feet, and on September 15, 2015, Burgess sent a request slip to the Health Services Unit (“HSU”) explaining that he had pain in his left heel and could not walk properly. (Id., ¶ 19.) On September 28, 2015, Malsteen gave Burgess a tennis ball to use on his feet. (Id., ¶ 20.)

         On October 13, 2015, Burgess sent Dr. Sauvey a second HSU request slip stating that “he needed plantar fasciitis shoes not diabetic shoes, because his inserts are too high for low top shoes.” (Id., ¶ 21.) On January 6, 2016, Dr. Aroboleda ordered that Burgess “be provided with special tennis shoes, orthotics and a tennis ball for [his] feet.” (Id., ¶ 22.) Burgess submitted several more HSU request slips (dated March 1, 2016, March 27, 2016, and April 1, 2016) stating that he was in “serious pain, ” could not walk properly, and needed new shoes or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.