United States District Court, E.D. Wisconsin
CHRISTOPHER D. JONES, Plaintiff,
BRIAN FOSTER, TONI MELI, SGT. STOUGHTON, SGT. BOZACK, SGT. MANTHEI, SGT. SANCHEZ, CO KROLL, CO KIBBEL, CO LOCKHART, CAPTAIN BAUER, N. WHITE, WILLSON, KRUEGER, and CHEF BRENDA, Defendants.
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING THE COMPLAINT (DKT. NO. 1)
PAMELA PEPPER United States District Judge.
plaintiff, an inmate in state custody, is representing
himself. He has filed a complaint, alleging that the
defendants violated his constitutional rights. Dkt. No. 1. He
also has filed a motion for leave to proceed without
prepayment of the filing fee. Dkt. No. 2. This decision
screens the complaint and resolves the plaintiff's
Motion for Leave to Proceed without Prepayment of the Filing
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.
§1915(b). On June 5, 2017, the court ordered the
plaintiff to pay an initial partial filing fee of $18.56.
Dkt. No. 5. The plaintiff paid the initial partial filing fee
on July 5, 2017. Accordingly, the court will grant the
plaintiff's motion to proceed without prepayment of the
filing fee. The court will order the plaintiff to pay the
remainder of the filing fee over time in the manner explained
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).
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). The
court gives a pro se plaintiff's allegations,
“however in artfully pleaded, ” a liberal
construction. See Erickson v. Pardus, 551 U.S. 89,
94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
The Plaintiff's Allegations
plaintiff alleges that he suffers from chronic knee pain.
Dkt. No. 1 at ¶25. On February 17, 2017, the Health
Services Unit (HSU) placed him on a permanent, light-activity
work restriction. Id. at ¶10, 25. Light
activity means that the plaintiff should have been restricted
from work assignments that require steady-paced activity.
Dkt. No. 1-1 at 2. There is no lifting restriction imposed in
connection with a light-activity restriction, but a person on
such a restriction should be allowed to work at his own pace.
February 2017, the plaintiff was employed in the kitchen as a
window server, which required him to be on his feet during
his shift and to carry food-filled trays to the dish room at
the end of his shift. Dkt. No. 1 at ¶33-36. The
plaintiff alleges that, despite knowing about his
light-activity restriction, defendants Krueger, Willson and
Chef Brenda “chose to force [the plaintiff] to continue
to work at full strength including all requisite duties and
heaving lifting and mobility . . . .” Id. at
February 23, 2017, the plaintiff injured his right knee
playing basketball. Dkt. No. 1-1 at 8. As a result, in
addition to the light-activity restriction, HSU placed the
plaintiff on no-work restriction through March 1, 2017.
Id. The nurse noted that she had updated WICS (the
internal database) and had notified Kroll and Bozack.
Id. On March 1, 2017, HSU extended the
plaintiff's no-work restriction for another week, and
added no-exercise or activities restrictions; one week later,
HSU extended the plaintiff's restrictions through April
8, 2017. Id. 10, 12.
plaintiff states that despite the no-work restriction,
defendants Kibbel and Manthei (the scheduling officers in the
kitchen) scheduled him to work. Dkt. No. 1 at ¶28. He
states that he told Willson (the food services manager) about
the no-work restriction, and she said she would look into it.
Id. at ¶8. He also states that defendants
Bauer, Stoughton and Bozack restricted the plaintiff's
attendance to recreation, meals and other out-of-cell
activities based on the restriction. Id. at
¶27-28. The plaintiff alleges that defendants Kroll,
Bauer, Krueger, Willson and Chef Brenda all knew of the
no-work restriction. Id. at ¶25.
March 19, 2017, the plaintiff was working in the kitchen at
his assigned post. Id. at ¶33. He informed
correctional officer Kickerbaul (who is not named as a
defendant) and defendant Sanchez that he recently had hurt
his knee, and that it was hurting from standing all day.
Id. He asked to go to HSU because the pain
medication wasn't working. Id. Sanchez denied
the plaintiff's request, because it already had been a
couple of days since the plaintiff had hurt his knee, and
Sanchez didn't think HSU would see him for an old injury.
Id. at ¶34. The plaintiff then asked Sanchez to
call HSU and tell them he wanted to be seen at sick call;
Sanchez refused. Id. at ¶35.
little later in the shift, the plaintiff informed Chef Brenda
that, because of his chronic knee issues and the fact that he
had been standing all day, he did not think that he would be
able to carry the food trays to the dish room at the end of
his shift. Id. at ¶36. Chef Brenda told the
plaintiff that he would be fine. Id. The plaintiff
then told Chef Brenda that he was on a no-work restriction,
and that all of the standing and lifting was causing his
knees to hurt really bad. Id. at ¶37. Chef
Brenda consulted ...