United States District Court, E.D. Wisconsin
William C. Griesbach, Chief Judge United States District
Plaintiff James Frutiger, who is incarcerated at Kettle
Moraine Correctional Institution, filed a pro se
complaint under 42 U.S.C. § 1983, alleging that his
civil rights were violated. This matter comes before the
court on the plaintiff's petition for leave to proceed
without prepaying the full filing fee.
is required to pay the $350.00 statutory filing fee for this
action. See 28 U.S.C. § 1915(b)(1). If a
prisoner does not have the money to pay the filing fee, he
can request leave to proceed in forma pauperis.
Plaintiff has filed a certified copy of his prison trust
account statement for the six-month period immediately
preceding the filing fee of his complaint, as required under
28 U.S.C. § 1915(a)(2), and has been assessed and paid
an initial partial filing fee of $23.10. Plaintiff's
motion to proceed in forma pauperis will be granted.
court is required 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 portion thereof if the
prisoner has raised 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). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short
and plain statement of the claim showing that [he] is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). The
complaint must contain sufficient factual matter “that
is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). The court accepts the factual allegations as true
and liberally construes them in the plaintiff's favor.
Turley v. Rednour, 729 F.3d 645, 651 (7th Cir.
2013). Nevertheless, the complaint's allegations
“must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555
complaint alleges that Frutiger first put in a health service
request (HSR) on July 12, 2016 regarding what was eventually
determined to be sores from an allergic reaction to an
unknown source. Dr. William Kelley prescribed hydrocortizone
and menphor lotion to treat the rash, which allegedly did not
work. Frutiger claims the rash was so severe that he was
scratching himself to the point of drawing blood. He
continued to submit HSRs and received other ointments and
lotions to treat the rash-which he claims continued to
provide no relief. By December 12, 2016, the rash and sores
allegedly spread to his legs, feet, back, and buttocks. Dr.
Kelley allegedly talked with Frutiger on December 13, 2016
about a skin biopsy or being seen by a dermatologist, but Dr.
Weber seemingly suggested no ongoing treatment for the rash.
Dr. Weber alleged discontinued all treatments for the rash on
December 16, 2016. Frutiger claims he wrote to Health
Services Manager William McCreedy on January 14, 2017 asking
if he could get a skin biopsy or see a dermatologist, but
that McCreedy “responded by saying my treatment was
finished and if anything worsens I should submit an HSR to be
seen by the HSU staff for a sick call.” Dr. Kelley
renewed all of the medications discontinued by Dr. Weber on
April 19, 2017, but allegedly told Frutiger that he needed to
stop asking questions, that he was “milking the system,
” and called Frutiger a “sass ass.”
Frutiger continued to submit HSRs and inmate complaints
through July 2, 2017 based on his complaints that none of the
treatment he received provided relief.
well-established that deliberate indifference to the serious
medical needs of a person held in custody violates his or her
constitutional rights. Estelle v. Gamble, 429 U.S.
97, 104 (1976); Jackson v. Ill. Medi-Car, Inc., 300
F.3d 760, 764 (7th Cir. 2002). To establish liability, a
prisoner must show (1) that his medical need was objectively
serious; and (2) that the official acted with deliberate
indifference to the prisoner's health or safety.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). A
serious medical need is “one that has been diagnosed by
a physician as mandating treatment or one that is so obvious
that even a lay person would recognize the necessity for a
doctor's attention.” Wynn v. Southward,
251 F.3d 588, 593 (7th Cir. 2001). Deliberate indifference
requires more than negligence; it requires that the official
know of, yet disregard, an excessive risk to the inmate's
health or safety. Farmer, 511 U.S. at 835, 837.
Subjective knowledge of the risk is required: "[A]n
official's failure to alleviate a significant risk that
he should have perceived but did not, while no cause for
commendation, cannot under our cases be condemned as the
infliction of punishment." Id. at 838. At this
stage of the proceedings, Frutiger has stated an Eighth
Amendment claim. Based on the facts stated above, I cannot
say that Frutiger's medical condition does not constitute
a serious medical need or that prison officials did not
demonstrate deliberate indifference to his condition.
recover under § 1983 a plaintiff must establish that a
defendant was personally responsible for the deprivation of a
constitutional right. Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995). An official satisfies the personal
responsibility requirement of § 1983 if the conduct
causing the constitutional deprivation occurs at his
direction or with his knowledge and consent. Id. At
this stage of the litigation, Frutiger may proceed against
McCreedy, Dr. Kelley, and Dr. Weber based upon Frutiger's
allegation that they knew of his injury yet did nothing or
failed to provide adequate treatment. However, Frutiger's
complaint does not clearly allege a claim against either the
Wisconsin Department of Corrections or Kettle Moraine
Correctional Institution and those defendants will be
IS THEREFORE ORDERED that the plaintiff's motion
for leave to proceed in forma pauperis be and hereby
IS FURTHER ORDERED that defendants Wisconsin
Department of Corrections and Kettle Moraine Correctional
Institution will be DISMISSED.
IS FURTHER ORDERED that pursuant to an informal
service agreement between the Wisconsin Department of Justice
and this court, copies of plaintiff's complaint and this
order are being electronically sent today to the Wisconsin
Department of Justice for service on the state defendants.
IS ALSO ORDERED that, pursuant to the informal
service agreement between the Wisconsin Department of Justice
and this court, the defendants shall file a responsive
pleading to the complaint within sixty days of receiving
electronic notice of this order.
IS FURTHER ORDERED that the Secretary of the
Wisconsin Department of Corrections or his designee shall
collect from the plaintiff's prison trust account the
$326.90 balance of the filing fee by collecting monthly
payments from the plaintiff's prison trust account in an
amount equal to 20% of the preceding month's income
credited to the prisoner's trust account and forwarding
payments to the clerk of the court each time the amount in
the account exceeds $10 in accordance with 28 U.S.C. §
1915(b)(2). The payments shall be clearly identified by the
case name and number assigned to this action.
IS ALSO ORDERED that copies of this order be sent to
the warden of the ...