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Fifer v. Tienor

United States District Court, E.D. Wisconsin

April 28, 2017

RHONDA LAVETTE FIFER, Plaintiff,
v.
PATRICK A. TIENOR, Defendants.

          DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), AND DISMISSING COMPLAINT

          HON. PAMELA PEPPER United States District Judge.

         The 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.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         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. §1915(b).

         On 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.

         II. Screening the Plaintiff's Complaint

         The law 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).

         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 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)).

         A. The Plaintiff's Allegations

         On 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.

         The 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.

         The 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 3.

         The 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 told ...


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