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Curry v. Krembs

United States District Court, E.D. Wisconsin

April 6, 2018

MARLON KING CURRY, Plaintiff,
v.
DR. KREMBS & NURSE STREEL, Defendants.

          SCREENING ORDER

          WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff Marlon Curry, who is representing himself, filed a complaint under 42 U.S.C. § 1983, alleging that his civil rights were violated. Plaintiff is currently incarcerated at Green Bay Correctional Institution, but was incarcerated at Racine Correctional Institution (RCI) during all relevant times. This matter comes before the court on Plaintiff's motion for leave to proceed without prepaying the full filing fee.

         Motion to Proceed without Prepayment of the Filing Fee

         Plaintiff is required to pay the $350.00 statutory filing fee for this action. See 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fee, he can request leave to proceed without prepayment of the full filing fee. Plaintiff has filed a certified copy of his prison trust account statement for the six-month period immediately preceding the filing of his complaint, as required under 28 U.S.C. § 1915(a)(2), and has been assessed and paid an initial partial filing fee of $12.00. Plaintiff's motion for leave to proceed without prepaying the filing fee will be granted.

         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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).

         To state a cognizable claim under the federal notice pleading system, the 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). The complaint must contain sufficient factual matter “that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court accepts the factual allegations as true and liberally construes them in the plaintiff's favor. Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013). Nevertheless, the complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         Allegations of the Complaint

         Plaintiff alleges that Dr. Krembs and Nurse Streel examined him on October 12, 2017, in RCI's Health Services Unit. ECF No. 1 at 2. Plaintiff alleges Dr. Krembs examined a large mass on Plaintiff's back, which he diagnosed as a lipoma. Id. Plaintiff alleges Dr. Krembs informed him that he needed to have surgery to remove it at a hospital and that he would schedule the surgery to be performed by him in four weeks. Id. Plaintiff alleges Dr. Krembs still has not performed the surgery and that he has been in pain since October. Id. at 2, 4. He also alleges the lipoma was originally the size of an orange, but over the past four months it has grown to the size of a grapefruit. Id. at 4.

         The Court's Analysis

         In order 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. Cty. 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). Plaintiff's claim is predicated on the principle adopted by the Supreme Court in Estelle v. Gamble that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment.” 429 U.S. 97, 104 (1976). The principle derives from the fact that “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.” Id. at 103.

         To demonstrate deliberate indifference, a plaintiff must show “actual knowledge by the officials and guards of the existence of the substantial risk and that the officials had considered the possibility that the risk could cause serious harm.” Washington v. LaPorte Cty. Sheriff's Dept., 306 F.3d 515, 518 (7th Cir. 2002) (citing Farmer, 511 U.S. at 834). Stating this another way, a plaintiff must demonstrate that he had an objectively serious medical condition and that the defendants were subjectively aware of and consciously disregarded that condition. Farmer, 511 U.S. at 837. A medical need is considered sufficiently serious if the inmate's condition “has been diagnosed by a physician mandating treatment or . . . is so obvious that even a lay person would perceive the need for a doctor's attention.” Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (citations omitted). Severe pain is considered a serious medical need which if untreated, may give rise to an Eighth Amendment claim. See Berry v. Peterman, 604 F.3d 435, 441 (7th Cir. 2010) (“A significant delay in effective medical treatment also may support a claim of deliberate indifference, especially where the result is prolonged and unnecessary pain.”). Ordinary negligence by prison officials, however, is not enough to demonstrate an Eighth Amendment violation. Washington, 306 F.3d at 518. Moreover, it is not enough to show that prison officials merely failed to act reasonably. Gibbs v. Franklin, 49 F.3d 1206, 1208 (7th Cir. 1995).

         According to an online medical resource, lipoma's are the most common tumor to form beneath the skin. They grow when a lump of fat starts to grow in the soft tissue of the body, and are particularly common in middle-aged men and women. Because they normally don't hurt, the usual treatment is to leave them alone. They can cause pain, however, if they bump up against nearby nerves or have blood vessels running through them. What is a Lipoma?, WebMd, https://www.webmd.com/skin-problems-and-treatments/what-is-a-lipoma#1 (last visited Apr. 6, 2018).

         If all this is true, then Plaintiff's claim of severe pain may be questionable. But my screening decision must be based on the allegations of the complaint, and courts are not free to supplement the record with online medical sources. See ABA Model Code of Judicial Conduct Canon 2 r. 2.9 cmt. 6 (Am. Bar Ass'n 2008) (“The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”). Reading Plaintiff's claim liberally, as I must do at this stage of the proceedings, and accepting as true his allegations, which I also must do, Plaintiff has sufficiently stated a claim against Dr. Krembs for deliberate indifference to his lipoma and pain. Plaintiff has alleged that Dr. Krembs recognize his lipoma and the need for surgery, but has not yet scheduled it for almost six ...


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