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Jones v. Foster

United States District Court, E.D. Wisconsin

July 25, 2017



          HON. PAMELA PEPPER United States District Judge.

         The 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.

         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 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.

         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 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, 106 (1976)).

         A. The Plaintiff's Allegations

         The 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. Id.

         As of 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 ¶29, 36-38.

         On 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.

         The 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.

         On 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.

         A 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 ΒΆ37. Chef Brenda consulted ...

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