United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
April 25, 2017, the plaintiff filed a complaint under 42
U.S.C. §1983, alleging that the defendants had violated
her constitutional rights. Dkt. No. 1. The plaintiff also
filed a motion for leave to proceed without prepayment of the
filing fee. Dkt. No. 2. This decision resolves the
plaintiff's motion and screens her complaint.
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 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.
4, 2017, the court ordered the plaintiff to pay an initial
partial filing fee of $7.84. Dkt. No. 5. The court received
the initial partial filing fee on May 19, 2017. Accordingly,
the court will grant the plaintiff's motion to proceed
without prepayment of the filing fee and will require her to
pay the remainder of the filing fee over time as 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) 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
plaintiff explains that, on January 24, 2017, she had a
laparoscopic paraesophageal hernia repair with
fundoplication. Dkt. No. 1 at 2. (A paraesophageal hernia
occurs when the stomach pushes through the opening in the
diaphragm usually reserved for the esophagus.
last visited August 4, 2017. Fundoplication describes the
particular technique used to repair the hernia.).
February 15, 2017, her doctor (who is not named as a
defendant) prescribed a protein diet. Id. The
plaintiff asserts that Nurse Tienor (who is not named as a
defendant), Nurse Flegel (who is not named as a defendant)
and defendant Nurse Shaefer refused to provide her with a
protein diet, and that Shaefer put her “on regular
plaintiff states that Nurse Shaefer indicated that she had
never received an order for a special diet, nor had she
spoken with the plaintiff's doctor or with nurse
practitioner Monica Nauta (the plaintiff does not explain who
this is, but the court assumes she works with the
plaintiff's doctor). Id. at 3.
plaintiff alleges that, as a result of not eating the
prescribed protein diet, her “stomach and intestines
are really in bad shape[;] [her] food will not ...