United States District Court, E.D. Wisconsin
DECISION AND ORDER GRANTING THE PLAINTIFF'S
MOTION TO PROCEED WITHOUT PREPAYING THE FILING FEE (DKT. NO.
2), SCREENING THE PLAINTIFF'S COMPLAINT (DKT. NO. 1), AND
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. Dkt. No. 1. This order resolves the
plaintiff's motion for leave to proceed without
prepayment of the filing fee, screens the complaint and
dismisses the case.
THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF
THE FILING FEE
August 16, 2017, Magistrate Judge William Duffin waived the
initial partial filing fee in this case because the plaintiff
neither had the assets nor the means to pay it. Dkt. No. 5.
Judge Duffin told the plaintiff that although he did not have
to pay an initial partial filing fee, he still had
to pay the civil case filing fee in full; in light of that,
he gave the plaintiff a deadline of September 7, 2017 to
notify the court if he sought to voluntarily dismiss the case
to avoid the possibility of incurring a strike under 28
U.S.C. §1915(g). Id. at 2-3. Judge Duffin
warned the plaintiff that if he did not voluntarily dismiss
by September 7, 2017, the court would grant the motion to
proceed without prepayment of the filing fee and would screen
the complaint. Id. at 4.
plaintiff did not voluntarily dismiss the case. The court
will grant his motion to proceed without prepayment of the
filing 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 COMPLAINT
Standard for Screening Complaints
Prison Litigation Reform Act 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 an action or portion thereof 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 Complaint
plaintiff is a former inmate at the Waupun Correctional
Institution (“WCI”). Dkt. No. 1. Defendant Donna
Nelson is Manager of the Health Services Unit
(“HSU”) at WCI, id. at 2; Nancy Garcia
is a doctor at WCI, id. at 3; and Thomas Grossman is
a surgeon at the Waupun Memorial Hospital who does contract
work with WCI, id.
plaintiff experienced pain in his fingers due to
“hardware” in his right hand that rubbed on his
knuckles. Id. Defendant Dr. Garcia (who was the
plaintiff's Department of Corrections doctor) referred
the plaintiff to defendant Dr. Grossman, with whom the
plaintiff first met in December 2016. Id. On
December 17, 2016, a request was faxed (the plaintiff does
not say by whom) to the Eau Claire Mayo Clinic “for
[the plaintiff's] medical record.” Id. HSU
Manager Nelson did not “ensure” that the
plaintiff's medical record was “received and
forwarded to the surgeon who operated on [the
plaintiff].” Id. at 2. Nor did Nelson allow
the plaintiff to see a different surgeon. The plaintiff also