United States District Court, E.D. Wisconsin
DWAYNE T. FREEMAN, Plaintiff,
SCOTT ECKSTEIN, STEVE SCHUELER, JOHN KIND, TONIA ROSMARYNOSKI, CO MARTINEZ, REBECCA LENZ, STEVE BOST, and JEAN LUTSEY, Defendants.
DECISION AND ORDER GRANTING PLAINTIFF'S MOTION
FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE
(DKT. NO. 2) AND SCREENING THE AMENDED COMPLAINT (DKT. NO.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. Under that law, the court
must screen a plaintiff's complaint to determine whether
the plaintiff states claims with which he may proceed. This
case currently is assigned to Magistrate Judge David Jones.
Because all parties have not had the opportunity to consent
to magistrate judge jurisdiction, the case was randomly
referred to a district court judge for the limited purpose of
screening the complaint. The court will return the case to
Magistrate Judge Jones for further proceedings after it
enters this order.
plaintiff filed his complaint on July 11, 2017. Dkt. No. 1.
Under certain circumstances, Federal Rule of Civil Procedure
15 allows a plaintiff to amend his complaint once without the
court's permission. The plaintiff filed an amended
complaint on July 31, 2017, dkt. no. 6; this amended
complaint replaced the plaintiff's original complaint. In
addition to filing an amended complaint, the plaintiff filed
a motion for leave to proceed without prepayment of the
filing fee. Dkt. No. 2. This decision will resolve the
plaintiff's motion and screen the amended complaint.
Motion for Leave to Proceed without Prepayment of 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).
August 1, 2017, Judge Jones ordered that by August 22, 2017,
the plaintiff pay an initial partial filing fee of $6.25.
Dkt. No. 9. The court received that fee on August 14, 2017.
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 Amended Complaint
requires the court to screen complaints, including amended
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
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. Vill. of N. 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,
The Plaintiff's Allegations
plaintiff alleges that a large puddle of water had collected
on his tier's floor. Dkt. No. 6 at 3. He explains that
numerous inmates complained to defendants Tonia Rosmarynoski
and CO Martinez about the water, but neither of them took any
steps to clean up the water or to warn inmates about the
slippery floors. Id. at 3-4.
plaintiff asserts that Rosmarynoski told him and others to
“get out of her face” and “lock in their
cells.” Id. at 4. The plaintiff states that he
complied, but that on his way to his cell, he slipped, hit
the floor hard and lost consciousness. Id. The
plaintiff states that, as he regained consciousness,
Rosmarynoski ordered him to get up and stop faking.
Id. According to the plaintiff, neither Rosmarynoski
nor Martinez “initiated HSU protocol for emergency
situation[s];” instead, they continued to yell at him
to get up and stop faking. Id.
plaintiff asserts that he laid on the floor for twenty
minutes before he was escorted to health services.
Id. An unidentified nurse (who is not named as a
defendant) examined him and gave him an ice pack, some
over-the-counter medication and a low-bunk restriction.