United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
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).
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).
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).
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.
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.
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.
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)).
complaint concerns alleged medical mistreatment by
Defendants, all prison officials at WSPF. (Docket
#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.
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.
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
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
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.
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 ...