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Roberts v. Grossman

United States District Court, E.D. Wisconsin

October 27, 2017

CODY MICHAEL ROBERTS, Plaintiff,
v.
DR. THOMAS W. GROSSMAN, NANCY GARCIA, and DONNA NELSON, Defendants.

          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 DISMISSING CASE

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         The 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.

         I. THE PLAINTIFF'S MOTION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE

         On 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.

         The 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.

         II. SCREENING OF THE PLAINTIFF'S COMPLAINT

         A. Standard for Screening Complaints

         The 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).

         To 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).

         The 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.

         Federal 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)).

         B. Facts Alleged in the Complaint

         The 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.

         The 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 says ...


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