United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2) AND SCREENING THE AMENDED COMPLAINT (DKT.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
plaintiff, a Wisconsin state prisoner who is representing
himself, filed a civil rights complaint under 42 U.S.C.
§1983, alleging that the defendants violated his Eighth
Amendment rights at the Waupun Correctional Institution
(“WCI”). Dkt. No. 8. This order resolves the
plaintiff's motion for leave to proceed without
prepayment of the filing fee and screens the plaintiff's
THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT
PREPAYMENT OF THE FILING FEE
Prison Litigation Reform Act (“PLRA”) applies to
this action because the plaintiff was incarcerated when he
filed his complaint. 28 U.S.C. §1915. The law allows a
court to give an incarcerated plaintiff the ability to
proceed with his lawsuit without pre-paying the civil
case-filing fee as long as he meets certain conditions.
Id. One of those conditions is a requirement that
the plaintiff must pay an initial partial filing fee. 28
U.S.C. §1915(b). Once the plaintiff pays the initial
partial filing fee, the court may allow the plaintiff to pay
the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
September 5, 2017, the court assessed an initial partial
filing fee of $47.29. Dkt. No. 5. The plaintiff paid that
amount on September 15, 2017. The court will grant the
plaintiff's motion for leave to proceed without
prepayment of the filling fee and will allow the plaintiff to
pay the balance of the $350.00 filing fee over time from his
prisoner account, as described at the end of this order.
SCREENING OF THE PLAINTIFF'S AMENDED COMPLAINT
Standard for Screening Complaints
PLRA requires federal courts 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 may dismiss a case, or part of a
case, if the claims alleged are “frivolous or
malicious, ” fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. §1915(e)(2)(B).
state a claim under the federal notice pleading system, the
plaintiff must 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 need not plead specific
facts, and need only provide “fair notice of what the .
. . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“Labels and conclusions” or a “formulaic
recitation of the elements of a cause of action” will
not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 555).
factual content of the complaint must allow the court to
“draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Allegations must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
Factual allegations, when accepted as true, must state a
claim that is “plausible on its face.”
Iqbal, 556 U.S. at 678.
courts follow the two-step analysis in Twombly to
determine whether a complaint states a claim. Id. at
679. First, the court determines whether the plaintiff's
legal conclusions are supported by factual allegations.
Id. Legal conclusions not supported by facts
“are not entitled to the assumption of truth.”
Id. Second, the court determines whether the
well-pleaded factual allegations “plausibly give rise
to an entitlement to relief.” Id. The court
gives pro se 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)).
Facts Alleged in the Amended Complaint
January 20, 2015, the plaintiff ran into a concrete wall
while playing basketball, and both heard and felt a
“snap” in his forearm. Dkt. No. 8 at 2, 8. He
immediately told Sergeant Tritt, and asked to see a nurse,
but Tritt responded, “You don't look all that hurt
to me, ” and refused to call the Health Services Unit.
Id. at 2-3. A different officer overheard their
conversation and called for an emergency escort. Id.
plaintiff indicates that immediately upon arriving at the
HSU, he was “forced” to sign a $7.50 medical
co-pay; he argues that this is against Division of Adult
Institutions policy. Id. The plaintiff told Nurse
Gail that he had both heard and felt his bone snap; he
described feeling numbness in his fingers. Id. Gail
recorded the plaintiff's pain as a ten out of ten, but
the plaintiff says that she “did not believe that [his]
arm was broken.” Id. Instead, she noted that
he had a two-centimeter laceration on his arm and gave him a
Band-Aid to cover the wound. Id. Gail asked if the
plaintiff had his own pain medication and an ice bag in his
cell (items he indicates inmates are not allowed to have
without a medical restriction). Id. Even though the
plaintiff answered “no, ” Gail stated that the
plaintiff was ...