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Jackson v. Murphy

United States District Court, E.D. Wisconsin

March 12, 2018

KEITH JACKSON, Plaintiff,
v.
DR. PATRICK MURPHY, GARY HAMBLIN, EDWARD WALL, JUDY SMITH, SARA KROPP, DANIELLE FOSTER, MORGAN BAILEY, WILLIAM MCCREEDY, WILLIAM GOLDEN, JAMIE BARKER, DAVID BURNETT, LON BECHER, HOLLY GUNDERSON, RN CARMODY, THERESA MURPHY AND CARRIE SPRANGER, Defendants.

         ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 3), SCREENING COMPLAINT UNDER 28 U.S.C. §1915A, DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION TO APPOINT COUNSEL (DKT. NO. 23), AND DENYING PLAINTIFF'S MOTION FOR INJUNCTION (DKT. NO. 27)

          PAMELA PEPPER United States District Judge

         The plaintiff, a Wisconsin state prisoner who is representing himself, filed this lawsuit under 42 U.S.C. §1983, dkt. no. 1, along with a motion for leave to proceed without prepayment of the filing fee, dkt. no. 3. This order resolves his motion and screens his complaint. This order also resolves the plaintiff's motion to appoint counsel, dkt. no. 23, and his motion for injunction, dkt. no. 27.

         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. 28 U.S.C. §1915. The PLRA allows a court to give an incarcerated plaintiff the ability 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 February 16, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $71.76. Dkt. No. 6. The plaintiff paid that fee on March 2, 2017. He has made additional payments totaling $122.00. The court will grant the plaintiff's motion, and will require the plaintiff to pay the remainder of the filing fee ($156.24) over time as described at the end of this decision.

         II. Screening the Plaintiff's Complaint

         The law 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 state a claim 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. Vill. of N. 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 is incarcerated at the Oshkosh Correctional Institution (Oshkosh). Dkt. No. 1 at 1. He suffers from “soft tissue disease or predisposal towards recurrent cystic formation or multiple disease.” Id. at 11. This condition has allegedly caused tumors and cysts to grow in the plaintiff's left testicle, and it also causes severe stomach pain. Id. at 12-13. He also has severe pain in his nose. Id. at 13. The plaintiff has filed a 97-page complaint in which he describes these medical conditions, treatment he has sought from the defendants, and treatment he has received both at Oshkosh and at outside hospitals. Id. at 9-91. The complaint allegations begin on February 27, 2012, and end in August 2016. Id. at 12, 88, 90.

         The plaintiff alleges that while Oshkosh medical staff saw him on a fairly regular basis for his medical issues and sent him offsite to specialists, they did not treat his severe pain, whether it was running out of his medications or the required “athletic supporter” for his testicle, or declining to treat the pain. See id., e.g., at 13, 20, 21, 28, 29, 31, 32, 35, 58, 59, 60, 69, 75 and 85. The plaintiff also alleges that the medical staff didn't follow specialists' treatment recommendations. See id., e.g., at 28, 43, 45, 46. The plaintiff's symptoms got progressively worse over time, and he allegedly notified the defendants of his untreated symptoms and severe pain multiple times. See id., e.g., at 14, 15, 16, 17, 30, 31, 36, 38, 39, 42, 45, 51, 53, 54, 55, 60, 61, 64, 65, 66, 67, 76, 77, 78, 84, 86, 87, 88, 89, 90.

         The plaintiff alleges that he finally had his nose surgery on May 6, 2015, id. at 76, finally had testicle surgery on November 6, 2015, id. at 85, and finally had surgery to remove the cysts and lumps in his throat on August 3, 2016, id. at 88, 90. The delay and failure to treat the plaintiff's symptoms from February 27, 2012, ...


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