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 DISMISSING COMPLAINT
PAMELA PEPPER United States District Judge.
plaintiff, a Wisconsin state prisoner who is representing
herself, 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
the motion and screens the complaint.
Motion for Leave to Proceed without Prepayment of the
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when she filed her
complaint. 28 U.S.C. §1915. The PLRA allows a court to
give an incarcerated plaintiff the ability to proceed with
her lawsuit without prepaying the case filing fee, as long as
she meets certain conditions. One of those conditions is that
the plaintiff pay an initial partial filing fee. 28 U.S.C.
March 22, 2017, the court ordered the plaintiff to pay an
initial partial filing fee of $14.45. Dkt. No. 5. The
plaintiff paid that fee on April 3, 2017. Accordingly, the
court will grant the plaintiff's motion. The court will
require the plaintiff to pay the remainder of the filing fee
over time as set forth at the end of this decision.
Screening 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 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).
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).
state a claim under 42 U.S.C. §1983, a plaintiff must
allege that: 1) she 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). The
court gives 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)).
The Plaintiff's Allegations
April 15, 2016, while in the restricted housing unit, the
plaintiff woke up with swollen, itchy eyes that were crusted
shut from draining puss and mucous. Dkt. No. 1 at 2. The
plaintiff complained to Sergeant Albrecht, who informed Nurse
Cortaz to go to the plaintiff's cell. Id. Nurse
Cortaz made some notes so she could inform the defendant,
Nurse Patrick Tienor. Id.
plaintiff asserts that, after learning about the
plaintiff's condition, the defendant did not go to see
the plaintiff, nor did he make arrangements to contact her.
Id. The plaintiff states that hours passed and her
symptoms worsened. Id. According to the plaintiff,
Albrecht noticed that the plaintiff's symptoms were
worsening and instructed her to inform Cortaz when Cortaz did
her second medication pass. Id.
plaintiff spoke to Cortaz, who informed her that the
defendant was not going to see her because he considered her
symptoms to be “a non-medical emergency, ” and
because the symptoms were on-going (the plaintiff denies that
her symptoms were on-going). Id. After Cortaz left,
the plaintiff pushed her call button and asked Officer
Fravert to contact the defendant. Id. Fravert
complied. Id. The defendant told her to have the
plaintiff “drop a blue HSU slip.” Id. at
plaintiff states that, after six hours of waiting, the
defendant examined her eyes and told her she had eye
conjunctivitis (i.e., pink eye). Id. He