United States District Court, E.D. Wisconsin
ORDER DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 4), SCREENING COMPLAINT AND DISMISSING
PAMELA PEPPER United States District Judge
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a complaint, dkt. no. 1, along with a motion
for leave to proceed without prepayment of the filing fee,
dkt. no. 4. The court grants the motion to proceed without
prepaying the filing fee, screens the complaint, and
dismisses the case.
Motion for Leave to Proceed without Prepayment of the
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. The PLRA allows a court to
give an incarcerated plaintiff the ability to proceed with
his lawsuit without prepaying the case filing fee, as long as
he meets certain conditions. One of those conditions is that
the plaintiff pay an initial partial filing fee. 28 U.S.C.
October 24, 2016, the court ordered the plaintiff to pay an
initial partial filing fee of $17.59. Dkt. No. 6. The
plaintiff paid that fee on November 22, 2016. 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.
Review of the Plaintiff's Claim
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, or part of it, 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.
state a cognizable 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). A plaintiff does not
need to 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 Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). A
complaint that offers “labels and conclusions, ”
however, or “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 allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
state a claim for relief under 42 U.S.C. §1983, a
plaintiff must allege that the defendants: 1) deprived him of
a right secured by the Constitution or laws of the United
States; and 2) acted under color of state law.
Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824,
827 (7th Cir. 2009) (citing Kramer v. Vill. of N. 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 the plaintiff's pro se
allegations, “however inartfully pleaded, ” a
liberal construction. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S.
97, 106 (1976)).
The Plaintiff's Allegations
plaintiff has only one arm; his left arm was amputated after
he suffered a shotgun wound. During the events he describes in
the complaint, he was incarcerated that the Wisconsin Secure
Program Facility (“WSPF”) in Boscobel, Wisconsin.
Dkt. No. 1 at 1.
15, 2015, the plaintiff wrote to the health services unit
(HSU) at WSPF, because his arm was itching (he'd
previously been housed at Dodge Correctional Institution;
he'd reported the itching to the Dodge medical staff,
who'd been “finding a way to do something about
it.”). Id. at 2. In addition, the plaintiff
needed help clipping his fingernails. Id. It appears
that HSU referred him to an RN, who told him to talk to the
Unit Manager social worker. They also advised him that they
were considering the nail clipping concern, and would let him
22, 2015, the plaintiff wrote to the security director and
asked that WSPF provide him with the same accommodation for
his arm that he had received at Dodge. Id. at 2;
Dkt. No. 1-1 at 2. For example, the plaintiff asked that his
floor be “scrubbed” (to make it less slippery)
and that he be given a chair to use in the shower.
Id. Defendant Kartman responded that the requested
items were reviewed and some were determined a
“security concern, ” and that security was
“exploring alternatives.” Dkt. No. 1-1 at 2.
plaintiff filed an inmate complaint about the denial of the
requested items. Dkt. No. 1 at 2. On July 20, 2015, the
inmate complaint examiner (ICE) recommended the complaint be
dismissed. Dkt. No. 1-1 at 3. The ICE explained that, while
the requested items had been denied, the plaintiff had been
provided “a personal caretaker to accommodate his needs
in place of the denied property items.” Id.
1, 2015, the plaintiff filed another inmate complaint,
asserting that his cell was not handicap accessible. Dkt. No.
1 at 2; Dkt. No. 1-1 at 8. The plaintiff requested that he be
given a toilet paper roll holder, a mounted shower scrubber,
and that his floor be “roughed up” to prevent
slipping. Dkt. No. 1-1 at 8. The ICE recommended the
complaint be dismissed because “Unit Supervisor Kool
ha[d] contacted maintenance and the toilet paper roll holder
and the cell floor will be completed as soon as
possible.” Id. In addition, the scrubber
request was being considered by security. Id.
plaintiff states that, on July 15, 2015, the Special Needs
Committee denied his request for fitted sheets. Dkt. No. 1 at
2. In its notification of the denial, the committee
instructed the plaintiff to refer his request “to the
ADA.” Dkt. No. 1-1 at 10.
August 4, 2015, the plaintiff appealed the dismissal of his
July 2015 inmate complaint. Dkt. No. 1-1 at 5. In reviewing
the appeal, the corrections complaint examiner explained that
WSPF had made changes to the plaintiff's inmate care plan
since the July 2015 decision. Id. She explained that
WSPF since had provided the plaintiff with a longer handled
scrub bush at shower times (passed out daily and collected by
staff after the plaintiff finishes showering), and had
ordered a scrubber with suction cups to place on the
plaintiff's sink so that he could wash his hand.
Id. at 5, 11. She also stated that HSU scheduled the
plaintiff for weekly assessments of his arm and his
“need for assistance with bathing, lotion application,
and nail clippings of finger nails on the right hand.”
Id. Finally, she noted that “the prosthetic
arm need has progressed to the referral stage but will still
require final approval from the DOC medical director.”
September 2015, the plaintiff slipped on the wet floor after
taking a shower, hurting his ankle and back. Dkt. No. 1 at 2.
The plaintiff filed an inmate complaint about how slippery
his shower floor was. Dkt. No. 1-1 at 14. In affirming the
complaint, the ICE noted that the plaintiff's cell floor
had already been “roughed up” by maintenance;
however, that solution appeared to be inadequate.
Id. at 15. The ICE spoke to defendant Kool, who
requested that maintenance explore other options.
Id. Sometime later, WSPF added a non-slip floor mat
to the plaintiff's shower area to lessen the likelihood
of the plaintiff slipping during his showers. Id.
The plaintiff complained that he did not believe the floor
mat would be adequate and stated that he would prefer