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Jesus v. Murphy

United States District Court, E.D. Wisconsin

February 2, 2017

MIGUEL DE JESUS, Plaintiff,
v.
PATRICK MURPHY, et al., Defendants.

          ORDER

          Lynn Adelman District Judge.

         Plaintiff, a Wisconsin state prisoner who is representing himself, filed a civil rights complaint under 42 U.S.C. §1983. This matter is before me on plaintiff's motion to proceed without prepayment of the filing fee (Docket #7), his motion to appoint counsel (Docket #2), his motion asking that I allow him to amend his complaint with the assistance of counsel (Docket #9), and for screening of his complaint (Docket #1).

         Plaintiff's Motion to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act gives courts discretion to allow prisoners to proceed with their lawsuits without prepaying the $350 filing fee, as long as they comply with certain requirements. 28 U.S.C. §1915. One of those requirements is that the prisoner pay an initial partial filing fee. On December 15, 2016, I ordered plaintiff to pay an initial partial filing fee of $2.83. Plaintiff paid that fee on January 30, 2017. As such, I will grant plaintiff's motion to proceed without prepayment of the full filing fee; he must pay the remainder of the filing fee over time as set forth at the end of this order.

         Screening of Plaintiff's Complaint

         Federal law requires that I 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). I 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).

         To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

         To proceed under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the defendant was 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). I will give a pro se plaintiff's 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)).

         Allegations in the Complaint

         On December 10, 2015, plaintiff, who is confined to a wheelchair, was sent to segregation. He states that the bed and toilet were about eighteen inches off the ground and that there were no bars to assist him. Plaintiff states that he had his wheelchair, but he had to struggle to get in and out of it. As a result of those struggles, plaintiff would stretch the skin on his back, causing it to break and tear and resulting in sores on his lower back.

         Plaintiff also alleges that he was “forced” to go to the health services unit (HSU) every day. Although not explicitly stated in his complaint, I assume that segregation was in a different building than HSU because plaintiff makes a point of explaining that he was forced to go “in the wind, snow, rain and cold.” (Docket #1 at 4.)

         On December 12, 2015, plaintiff began to feel sick. He alleges he told defendant Jane Doe Nurse #1 that he felt weak and dizzy. Defendant Jane Doe LPN/CNA also informed Jane Doe Nurse #1 about plaintiff's condition. Plaintiff states that he advised Jane Doe LPN/CAN every day of his condition (plaintiff does not specify how many day he complained to her). Another nurse (who is not named as a defendant) also informed defendant Jane Doe Nurse #2 about plaintiff's condition.

         On December 23, 2015, defendant John Doe second shift segregation sergeant and defendants John Doe second shift correctional officers woke plaintiff to take him to HSU. Plaintiff alleges that he had to sit outside during a snowstorm until a lift van arrived to take him to HSU. Plaintiff states that John Doe correctional officer who brought the lift van struggled to lower the ramp. By the time he lowered the ramp, plaintiff was covered in snow.

         On December 27, 2015, plaintiff asserts that Jane Doe LPN/CNA informed defendant Patrick Murphy that the area she was wrapping on plaintiff did not look good. Murphy allegedly looked at the area, told Jane Doe LPN/CNA to clean it and wrap it again with new bandages. Plaintiff states that by the time this occurred, he was so weak that he could not even eat ...


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