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Evans v. Joseph

United States District Court, E.D. Wisconsin

March 27, 2018

MICHAEL L. EVANS, Plaintiff,
v.
DR. JOSEPH, JEAN LUTSEY, S. PETERS, and WARDEN SCOTT ECKSTEIN, Defendants.

          DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), GRANTING NUNC PRO TUNC THE PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO PAY THE FILING FEE (DKT. NO. 8) AND SCREENING THE COMPLAINT (DKT. NO. 1)

          HON. PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.

         The plaintiff, a Wisconsin state prisoner who is representing himself, has filed a complaint alleging that the defendants violated his constitutional rights when they were deliberately indifferent to his serious medical needs. Dkt. No. 1. In addition to filing a complaint, he has filed a motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and a motion for an extension of time to pay that fee, dkt. no. 8. This order screens the complaint and resolves the plaintiff's motions.

         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 must pay an initial partial filing fee. 28 U.S.C. §1915(b).

         On July 19, 2017, the court ordered that by August 9, 2017, the plaintiff had to pay an initial partial filing fee of $11.75. Dkt. No. 5. The plaintiff filed a motion asking for an extension of that deadline. Dkt. No. 8. On August 11, 2017, however-two days after he'd filed the motion for an extension of time- the court received the initial partial filing fee. The court will grant the plaintiff's motion for an extension of time nunc pro tunc (retroactively), and will grant his motion to proceed without prepayment of the filing fee. The court will order the plaintiff to pay the remainder of the filing fee over time in the manner explained at the end of this decision.

         II. Screening the Plaintiff's Complaint

         The PLRA 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 seeks 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 proceed on 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. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v. Vill. 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 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 an inmate at Green Bay Correctional Institution (“GBCI”). Dkt. No. 1 at 1. He explained in the complaint that he suffers from constant, excruciating pain. Id. at 2. He alleges that in March 2016, after a series of tests, Dr. Sauvey (who is not a defendant) diagnosed him with degenerative disc disease. Id. In July or August 2016, she ordered surgery-a procedure consisting of cutting the nerve in the plaintiff's neck as a way of relieving pain. Id.

         According to the plaintiff, defendant Jean Lutsey, the Health Services Manager at GBCI, overrode Sauvey's recommendation for the surgical procedure, and ordered “advance pain therapy” instead. Id. In October 2016, the plaintiff received an injection in his neck, physical therapy and over-the- counter medication. Id. at 2-3. The plaintiff asserts that these measures only left him in “agonizing pain.” Id. at 3.

         The plaintiff states that he continued to complain about his pain. Id. In March 2017, defendant Dr. Joseph (who replaced Dr. Sauvey) examined the plaintiff. Id. The plaintiff explains that he told Dr. Joseph that he was in pain and was losing feeling in his neck and in the left side of his body. Id. According to the plaintiff, Dr. Joseph scheduled an off-site advanced pain therapy appointment, which the plaintiff states was a waste of time and money. Id.

         The plaintiff asserts that he did not receive any injections or treatment of any kind in early April 2017. Id. At the end of April, Dr. Joseph ...


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