United States District Court, E.D. Wisconsin
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.
PEPPER United States District Judge
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.
Motion for Leave to Proceed without Prepayment of the Filing
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.
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.
Screening the Plaintiff's Complaint
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).
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).
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,
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.
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.
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, ...