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Freeman v. Eckstein

United States District Court, E.D. Wisconsin

September 11, 2017

DWAYNE T. FREEMAN, Plaintiff,
v.
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. 6)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         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. 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.

         The 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.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         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 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.

         II. Screening the Plaintiff's Amended Complaint

         The law 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 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. 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, 106 (1976)).

         A. The Plaintiff's Allegations

         The 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.

         The 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.

         The 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. I ...


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