United States District Court, E.D. Wisconsin
ORDER
WILLIAM E. DUFFIN, U.S. Magistrate Judge
Plaintiff
James McDonald, who is representing himself, filed a
complaint under 42 U.S.C. § 1983, alleging that his
constitutional rights are being violated, along with a motion
for leave to proceed without prepayment of the filing fee.
This order resolves McDonald's motion and screens his
complaint.
Motion
for Leave to Proceed without Prepayment of the Filing
Fee
The
Prison Litigation Reform Act (PLRA) gives courts discretion
to allow prisoners to proceed with their cases 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 February 8, 2018, the court waived McDonald's
obligation to pay an initial partial filing fee because he
has neither the assets nor the means to do so. The court gave
him until March 2, 2018, to notify it if he would like to
voluntarily dismiss this case to avoid the possibility of
incurring a strike under 28 U.S.C. § 1915(g). From
McDonald's silence, the court infers that he would like
to proceed with this case. Accordingly, the court will grant
McDonald's motion to proceed without prepayment of the
filing fee. He must pay the $350 filing fee over time in the
manner explained at the end of this order.
Screening
of the Complaint
The
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. §
1915A(b).
To
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).
The
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)).
The
Complaint's Allegations
McDonald
alleges that he has been incarcerated at the Kenosha County
Jail since August 20, 2017. (ECF No. 1 at 2.) Since then, he
has written numerous sick call slips and has been seen by
members of the nursing staff, including Nurse Samantha,
Health Services Director Denise, and others. McDonald alleges
that he has been plagued with a sinus infection, severe
sneezing, itching, and other problems. McDonald states that
he has been given Zyrtec and another unidentified medication,
neither of which has helped. McDonald has also sought
replacement parts for his CPAP machine, which he brought to
the jail. McDonald complains that he is indigent and unable
to purchase the replacement parts himself.
McDonald
also alleges that he has been charged nearly $230 for heart
medications. He asserts that no one will schedule him an
appointment with an outside doctor to determine why he is
suffering from sinus issues. McDonald states that people talk
to him like he is not a person and lie to him. According to
McDonald, defendant Nurse Samantha instructed him to purchase
medication at the commissary, which she knows he cannot
afford to do.
The
Court's Analysis
Prison
officials violate the Constitution's “proscription
against cruel and unusual punishment when their conduct
demonstrates ʹdeliberate indifference to serious medical
needs of prisoners.ʹʺ Gutierrez v. Peters,
111 F.3d 1364, 1369 (7th Cir. 1997). This standard contains
both an objective element (that the medical needs be
sufficiently serious) and a subjective element (that the
officials act with a sufficiently culpable state of mind).
Id.
McDonald
states a deliberate indifference claim against Director
Denise and Nurse Samantha based on his allegations that they
have failed to adequately treat his repeated complaints of
sneezing, itching, and other sinus discomfort and have
refused to replace parts for or sanitize his CPAP machine.
See Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th
Cir. 1990) (per curium) (prisoner could prevail on Eighth
Amendment ...