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Zibolsky v. Will

United States District Court, E.D. Wisconsin

February 2, 2018

JOHN WAYNE ZIBOLSKY, Plaintiff,
v.
NURSE WILL, NURSE KRYSTAL, NURSE ERIN, NURSE PARKER, NURSE MEGAN, and WINNEBAGO COUNTY, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), GRANTING HIS MOTION TO ADD DEFENDANTS (DKT. NO. 10) AND SCREENING THE COMPLAINT (DKT. NO. 1)

          HON. PAMELA PEPPER, United States District Judge

         While he was incarcerated at the Wisconsin Resource Center, the plaintiff-representing himself-filed a complaint, alleging that the defendants violated his constitutional right to be free from cruel and unusual punishment when they were deliberately indifferent to his serious medical needs. Dkt. No. 1. The plaintiff also filed a motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and a motion to add defendants, dkt. no. 10. This decision will screen the complaint and resolve the plaintiff's motions.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The Prison Litigation Reform Act (PLRA) applies to this case, because the plaintiff was incarcerated when he filed his complaint.[1] 28 U.S.C. §1915. The PLRA authorizes a court to allow an incarcerated plaintiff 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 pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On August 8, 2017, U.S. Magistrate Judge William Duffin (who was assigned to the case at that time) ordered that by August 30, 2017, the plaintiff had to pay an initial partial filing fee of $1.43. Dkt. No. 5. The court received the filing fee on August 24, 2017. The court will grant the plaintiff's motion to proceed without prepayment of the filing fee. The court 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 PLRA 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 he suffers from degenerative joint disc disease, and that he has been on pain medication and in physical therapy since the 1990's. Dkt. No. 1 at 2. While his medication had been on a “prn” (shorthand for the Latin phrase pro re nata, which means “when necessary” or “as needed”) basis, the plaintiff asserts that he requested the doctor (who is not a defendant) to change his “yellow pain pill” to a regularly scheduled basis. Id. at 3. According to the plaintiff, the doctor complied and ordered that he take the pill twice daily, rather than only when he needed it. Id.

         The plaintiff alleges that, during the second week of June 2017, Nurse Parker and Nurse Megan[2] failed to give him his medication at the regular medication pass. Id. The plaintiff states that both nurses said they “forgot” the medication. Id. The plaintiff explains he waited all day but never received his prescription medication, which caused him “extreme mental and emotional distress via pain and suffering.” Id.

         The plaintiff also alleges that on June 22, 2017, defendant Nurse Erin did not give him his yellow pain pill; when he asked her about it, she stated that she was told (it is unclear by whom) not to bring it. Id. at 4.

         B. The ...


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