United States District Court, E.D. Wisconsin
ORDER AND REPORT AND RECOMMENDATION
WILLIAM E. DUFFIN, U.S. Magistrate Judge
Earnest McMiller, who is representing himself, filed a
complaint under 42 U.S.C. § 1983 alleging that his
constitutional rights are being violated. He also filed a
motion for leave to proceed without prepayment of the filing
fee. The court previously entered an Order regarding this
matter. In light of Coleman v. Labor & Indus. Review
Comm'n of Wisconsin, 860 F.3d 461 (7th Cir. 2017),
cert. denied, 138 S.Ct. 739 (2018), portions of that
Order should have been phrased as a Report and Recommendation
pursuant to 28 U.S.C. § 636(b). The court now vacates
that Order and instructs the Clerk to strike it from the
docket. The court now reissues that prior Order as a
Recommendation to comply with Coleman.
court grants the motion to proceed without prepayment of the
filing fee and recommends that McMiller be allowed to proceed
on a deliberate indifference claim against defendant S.
Moerchen and C. Barter and that defendants Jane Doe and Nurse
Thompson be dismissed.
for Leave to Proceed without Prepayment of the Filing
Prison Litigation Reform Act (PLRA) gives courts discretion
to allow prisoners to proceed with their lawsuits without
prepaying the $350 filing fee, as long as they comply with
certain requirements. 28 U.S.C. § 1915. One of those
requirements is that they pay an initial partial filing fee.
On October 16, 2017, the court ordered McMiller to pay an
initial partial filing fee of $10.35. McMiller paid that fee
on December 11, 2017. Accordingly, the court will grant
McMiller's motion to proceed without prepayment of the
filing fee. He must pay the remainder of the filing fee over
time in the manner explained at the end of this order.
of the Complaint
court is required 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 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. 28 U.S.C. §
state a cognizable claim under the federal notice pleading
system a 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). 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) (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).
court is obliged to give a 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)).
is currently incarcerated at Redgranite Correctional
Institution (RGCI). In January 2016 McMiller began to
complain of severe pain in his left leg, which he attributes
to a previous gunshot wound. He informed the Health Service
Unit (HSU) at RGCI using a form, and he also let HSU staff
know that the medication he had been given was not working.
Defendants S. Moerchen and C. Barter, nurses working at the
HSU, often responded with “you are scheduled to be
seen” or “you can discuss at your next
appointment.” Nothing was done to relieve his pain, and
it went on until March 2016, when he began to write and
inform HSU staff that he needed someone to look at his left
leg. His leg had a metal rod inside of it, and it was
blistering and he “was able to see bone exposed.”
McMiller further informed staff that the area where the rod
was inserted was beginning to hurt and he believed the rod
needed to be removed.
was experiencing pain shooting from his feet up through his
leg, and the response he got was to discuss it at his next
appointment. He repeatedly wrote and received responses from
the defendants to “take it up at [his] next
appointment.” This went on until March 2017, when it
was finally discovered that the metal rod in his leg had
caused a severe infection, resulting in the removal of a
large portion of the flesh on his leg in order to save his
1983 “creates a cause of action based on personal
liability and predicated upon fault; thus, liability does not
attach unless the individual defendant caused or participated
in a constitutional violation.” Vance v.
Peters, 97 F.3d 987, 991 (7th Cir. 1996) (quoting
Sheik-Abdi v. McClellan, 37 F.3d 1240, 1248 (7th
Cir. 1994)). In other words, because §1983 makes public
employees liable “for their own misdeeds but not for
anyone else's, ” Burks v. Raemisch, 555
F.3d 592, 596 (7th Cir.2009), a plaintiff must specify in his
allegations what each individual defendant did (or did not
do) to violate his constitutional rights. Because McMiller
includes defendants Jane Doe and Nurse Thompson in the
caption of his ...