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Hughes v. Taycheedah Correctional Institution

United States District Court, E.D. Wisconsin

August 7, 2017

ANNA MARIE HUGHES, Plaintiff,
v.
TAYCHEEDAH CORRECTIONAL INSTITUTION and MRS. SHAEFER, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION TO PROCEED

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         On 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.

         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 May 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.

         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) 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

         The 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. https://www.floridahospital.com/paraesophageal-hernia, last visited August 4, 2017. Fundoplication describes the particular technique used to repair the hernia.).

         On 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 trays.” Id.

         The 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.

         The 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 ...


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