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Antepenko v. Domrois

United States District Court, E.D. Wisconsin

October 26, 2017

WILLIAM T. ANTEPENKO, JR., Plaintiff,
v.
DR. DOMROIS, RICHARD BUBOLZ, LEE BECHER, DANIELLE FOSTER, DAWN FOFANA, and M. LEE, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO. 1)

          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 the plaintiff's complaint to determine whether the plaintiff states claims with which he may proceed. In addition to filing a complaint, the plaintiff filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. This decision screens the complaint and resolves the plaintiff's motion.

         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 must pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On September 12, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $7.52 by October 2, 2017. Dkt. No. 6. The plaintiff paid the fee on September 27, 2017. The court will grant the plaintiff's motion to proceed without prepayment of the filing fee, and 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 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) 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. 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 his dentures do not fit properly. Dkt. No. 1 at 4. As a result, they sometimes fall out of his mouth while he's talking, cause pain and sore spots, and prevent him from eating certain foods. Id. at 4-5. He states that he needs a soft liner and Fixodent to help them stay in his mouth, but that he cannot afford to buy Fixodent at the canteen. Id. at 4.

         According to the plaintiff, he has informed defendant Dr. Domrois on numerous occasions that his dentures do not fit. Id. Domrois allegedly has tried two times to fix the dentures, which were made for the plaintiff by an outside provider, but the dentures still do not fit. Id. The plaintiff states that Domrois refuses to get new dentures for the plaintiff; he has told the plaintiff that the problem is with his gum line. Id. at 4-5.

         The plaintiff also states that Domrois will not provide him with a prescription for Fixodent to help the dentures fit better. Id. Domrois allegedly told the plaintiff that he could apply for a medical loan, but the health services staff told the plaintiff that he could not use a medical loan to buy Fixodent. Id. Regardless, it appears that the plaintiff no longer wishes to use Fixodent to help his dentures fit better; he explains that he recently learned that excessive use of Fixodent, which contains Zinc, can lead to serious health problems. Id. at 5-6.

         The plaintiff filed an inmate complaint, which was investigated by defendant Richard Bubolz. Id. at 3-4. Bubolz reviewed the plaintiff's banking information and spoke to defendants Danielle Foster, Dawn Fofana and M. Lee. Id. at 4. According to the plaintiff, in deciding to dismiss the plaintiff's complaint, Bubolz concluded, ‚ÄúThis office has no reason to believe the care, treatment, and ...


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