United States District Court, E.D. Wisconsin
MICHAEL L. EVANS, Plaintiff,
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)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE.
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.
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 must pay an initial partial filing fee. 28
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.
Screening the Plaintiff's Complaint
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.
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).
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,
The Plaintiff's Allegations
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.
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.
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.
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 ...