United States District Court, E.D. Wisconsin
ADELMAN UNITED STATES DISTRICT JUDGE.
plaintiff, Sirment Davis, is a Wisconsin state prisoner
representing himself. He filed a complaint alleging that the
defendants violated his constitutional rights. This matter
comes before the court on plaintiff's petition to proceed
without prepayment of the filing fee (in forma pauperis) and
to screen the complaint. Plaintiff has been assessed and paid
an initial partial filing fee of $38.41. See 28 U.S.C. §
1915(b)(1). I will grant his motion to proceed without
prepayment of the filing fee and collect the rest of the
filing fee as explained at the end of this order.
of Review for Screening Complaint
court shall 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. §
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); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). 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.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
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 Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355
U.S. 41, 47 (1957)). However, a complaint that offers mere
“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). To state a
claim, a complaint must contain sufficient factual matter,
accepted as true, “that is plausible on its
face.” Id. (quoting Twombly, 550 U.S.
at 570). “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. (citing
Twombly, 550 U.S. at 556). The complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
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, second,
“assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”
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). 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,
is incarcerated at the Redgranite Correctional Institution
(RGCI). He is suing: Lori Doehling, who is RGCI's Health
Services Unit manager; Nurse Thompson; Dr. Doe, who works at
St. Angels Hospital; and John and Jane Doe.
alleges that on June 30, 2017, he was transported from RGCI
to St. Angels Hospital where had had surgery to place a metal
rod in his middle toe. Within two-and-a-half weeks the metal
rod began to extend out of the front of plaintiff's toe.
He reported to RGCI's Health Services Unit staff that he
was feeling “extremely sick” but defendants
Doehling and Thompson refused to provide any assistance in
response to his complaints.
30, 2017, plaintiff was finally transported to “Berlin
hospital” for a culture. Plaintiff returned to RGCI and
the next day he was informed that he had a very bad infection
and his toe needed to be amputated. That same day, July 31,
2017, plaintiff was taken to “UW Hospital” where
his toe was amputated.
alleges that he had repeatedly complained of pain in his toe
and that defendants should have examined it prior to July 30,
2017. Defendants allegedly refused to examine his toe and did
not believe that the metal rod was sticking out of his toe.
The one time plaintiff was examined he was told that there
was just dried blood on the tip of his toe. The examining
doctor at St. Angels Hospital refused to take any action upon
examining plaintiff's toe and observing the metal rod
sticking out. ...