United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE UNITED STATES DISTRICT
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.
to Proceed without Prepayment of the Filing Fee
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.
of the Complaint
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).
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).
of the Complaint
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.
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.
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).
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,
(last visited Apr. 6, 2018).
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 ...