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Benson v. Bowens

United States District Court, E.D. Wisconsin

January 23, 2017

NANCY BOWENS, ET AL., Defendants.


          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         Plaintiff Jeffrey Delane Benson is a Wisconsin state prisoner representing himself. He filed a complaint alleging that the defendants acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution, and that some of the defendants were negligent in violation of Wisconsin state law. This matter comes before the court on Benson's petition to proceed without prepayment of the filing fee (in forma pauperis).

         Benson has been assessed and paid an initial partial filing fee of $6.42. On the same day the court received Benson's initial partial filing fee he filed a motion for a court order to pay the initial partial filing fee from his release account. (ECF No. 10.) Because Benson already submitted the initial partial filing fee, the court will deny this motion as moot.

         Standard of Review for Screening Complaint

         The court shall 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, ” 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).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997). 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) (citations omitted).

         To state a cognizable claim under the federal notice pleading system, Benson is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). Benson need not 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)). 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). 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's 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 should follow the principles set forth in Twombly by, first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “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, Benson must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Village 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 Benson'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)).

         Complaint's Allegations

         Benson is incarcerated at the Oshkosh Correctional Institution (“Oshkosh”). He is suing Nurse Practitioner Nancy Bowens, Health Services Supervisor Danielle Foster, Institution Complaint Examiner Theresa Murphy, J. Zanon, Warden Judy P. Smith, Dr. P. Murphy, Captain Tess, Health Care Unit Assistant J. Barker, Jane Doe, and John Doe.

         Benson alleges that he has diabetes which causes him to have issues with his feet. On June 13, 2014, pursuant to a referral from defendant Bowens, Benson had an appointment at the University of Wisconsin Hospital and Clinics (“UW Hospital”) for an evaluation of his feet. At the hospital Benson was diagnosed with “diabetes mellitus with neuropathy” and “pes planus with foot pain.” (ECF No. 1 at 6.) Dr. Migon, the UW Hospital practitioner who assessed Benson, recommended that he get “a pair of extra-depth diabetic type of shoes” and a customized orthotic to decrease his foot pain within the arch and instep area. (Id.)

         After his appointment Benson submitted several “medical slips” because he was in pain and had not yet been seen by medical staff at Oshkosh for follow-up from his UW Hospital appointment. On August 11, 2014, about eight weeks after the UW Hospital appointment, defendant Bowens saw Benson at which time Benson informed her that the medication he had been taking was not working. Benson also asked Bowens about the shoes and orthotics that Dr. Migon had recommended. Bowens increased Benson's pain medication but did not do anything about the shoes and orthotics.

         Benson submitted medical slips on August 20, 2014, October 3, 2014, November 2, 2014, December 3, 2014, and December 16, 2014. His medical slips included information that he was in pain, one advised that he was finding it difficult to walk, and he questioned why Oshkosh had not followed Dr. Migon's recommendation for treatment for his feet. Two of his medical slips were directed to Dr. Murphy.

         On December 22, 2014, Benson was sent back to the UW Hospital, and from there he was sent to Aljan in Madison, Wisconsin, where Dr. Burke made molds of his feet for orthotics. (According to their website, The Aljan Company is an independent provider of orthotic, prosthetic, and pedorthic services. See, last visited January 23, 2017.) Even though Dr. Migon had recommended that Benson wear extra-depth shoes, ...

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