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Adell v. Boughton

United States District Court, E.D. Wisconsin

November 7, 2017

MARK ANTHONY ADELL, Plaintiff,
v.
WARDEN GARY BOUGHTON, JOLINDA WATERMAN, BETH EDGE, K. RUNNING, M. BARTELS, ELLEN RAY, and JANE DOES, Defendants.

          ORDER

          J.P. Stadtmueller U.S. District Judge

         Plaintiff, who is incarcerated at the Wisconsin Secure Program Facility (“WSPF”), filed a pro se complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. (Docket #1). This matter comes before the Court on Plaintiff's motion to proceed in forma pauperis. (Docket #2). The Court originally assessed Plaintiff an initial partial filing fee of $1.45. (Docket #5); 28 U.S.C. § 1915(b)(4). However, Plaintiff filed a motion to waive payment of the initial partial filing fee, arguing that he has insufficient funds in his trust account and that prison officials will not allow him to overdraft the account or take a legal loan to pay the fee. (Docket #7).

         Although the records initially presented to the Court suggested that Plaintiff had the ability to pay an initial partial filing fee, the Court credits his representations in his motion that, in reality, he cannot. The Court therefore finds that Plaintiff does not have the assets or means to pay the initial partial filing fee originally assessed. Because the Prison Litigation Reform Act mandates that a prisoner will not be prohibited from bringing a civil action for the reason that he lacks the assets and means to pay an initial partial filing fee, 28 U.S.C. § 1915(b)(4), Plaintiff will be granted a waiver of payment of the initial partial filing fee in this case. However, he is still obligated to pay the full filing fee pursuant to the statutory formula set forth in 28 U.S.C. § 1915(b)(2). See Id. § 1915(b)(1).

         Having determined that Plaintiff need not pay the initial partial filing fee, the Court next turns to screening his complaint. The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. Id. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised 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. Id. § 1915A(b).

         A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Gladney v. Pendelton Corr. Facility, 302 F.3d 773, 774 (7th Cir. 2002). The Court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327; Gladney, 302 F.3d at 774. “Malicious, ” although sometimes treated as a synonym for “frivolous, ” “is more usefully construed as intended to harass.” Lindell v. McCallum, 352 F.3d 1107, 1109 (7th Cir. 2003) (citations omitted); accord Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011).

         To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts, and his statement need only “‘give the defendant 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)); see Christopher v. Buss, 384 F.3d 879, 881 (7th Cir. 2004). However, a complaint that offers “labels and conclusions” or “formulaic recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; Christopher, 384 F.3d at 881.

         In considering whether a complaint states a claim, courts should follow the principles set forth in Twombly by first “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the Court must then “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         To state a claim for relief 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 deprivation was visited upon him by a person or persons acting under color of state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The Court is obliged to give the plaintiff's 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)).

         Plaintiff's complaint concerns alleged medical mistreatment by Defendants, all prison officials at WSPF. (Docket #1).[1] On September 27, 2017, Plaintiff was seen by a doctor in the Health Services Unit (“HSU”) at WSPF. Id. at 3. The doctor, identified as “M.D. Miller, ” prescribed Bentyl, the brand name for dicyclomine, to treat Plaintiff's chronic ulcerative colitis, which is a complication of Plaintiff's Crohn's disease. Id. His prescription for Excedrin to treat his chronic migraines was also increased. Id.

         On October 10, 2017, Plaintiff received a package of medication labelled “dicyclomine.” Id. Apparently, Dr. Miller never explained that dicyclomine is the generic name for Bentyl, and Plaintiff was confused as to whether this was the proper medication for him. See Id. He asked the officer who delivered him the medication to take it back and verify its correctness. Id. The officer inquired with a nurse doing rounds in the housing unit that she would look into it, but Plaintiff says she never followed up with him. Plaintiff also says the officer never returned the medication to him, but he then contradictorily states that he “returned the questionable pills to the HSU” the next day along with a written request for the correct medication. Id.

         Defendant Jane Doe, an HSU nurse, responded to Plaintiff's request. Id. at 4. She enclosed written materials explaining that Bentyl and dicyclomine are two words for the same drug. Id. However, she did not return the medication to Plaintiff. Id. Instead, she wrote to him and asked if Plaintiff wanted to refuse the medication. Id. Plaintiff did not complete or return the refusal form provided. Id.

         Plaintiff has submitted numerous requests for return of the Bentyl and alleges he has been refused by several nurses “on erroneous pretenses.” Id. He has now gone without the medication for over two weeks. Id. Additionally, despite an order from Dr. Miller increasing the dosage of his Excedrin, the same nursing staff will not refill the medication per the new order. Id. Apparently, they erroneously claim that no increase was ever ordered. Id.

         Plaintiff has written to Dr. Miller several times seeking his assistance in enforcing the medication orders, but Plaintiff claims that Defendant Beth Edge (“Edge”), another HSU nurse, intercepted the communications and answered them herself. Id. Plaintiff accuses her of lying about the Excedrin order being a renewal of the prior prescription rather than an increase. Id.

         Plaintiff reports that he has now filed over seventy inmate complaints about these issues and has complained to the state nursing board. Id. He has been afforded no relief, which he attributes to refusing to abide by Dr. Miller's orders, as well as harassment and retaliation. Id. In particular, Plaintiff says that the inmate complaint examiner, Defendant Ellen Ray (“Ray”) and the reviewing authority for the institution, Defendant Gary Boughton (“Boughton”), have ignored his inmate grievances and turned a blind eye to his distress. Id. at 4-5. This includes, for example, Ray's decision not to accept Plaintiff's grievances despite the existence of a prison policy requiring that grievances ...


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