United States District Court, E.D. Wisconsin
DECISION AND ORDER SCREENING PLAINTIFF'S
JOSEPH, UNITED STATES MAGISTRATE JUDGE.
Milton McDaniel, who is representing himself, filed a civil
rights complaint pursuant to 42 U.S.C. § 1983 alleging
that the defendant violated his constitutional rights by not
transferring him to the behavioral health unit (BHU) due to
his mental health. He has also filed a motion seeking leave
to proceed without prepayment of the filing fee, two motions
requesting use of his release account to pay his initial
partial filing fee, and a motion to appoint counsel. I will
address each in turn.
initial matter, not all parties have had the opportunity to
fully consent to magistrate judge jurisdiction under 28
U.S.C. § 636(c). Nonetheless, the court has jurisdiction
to screen the complaint pursuant to the Wisconsin Department
of Justice's limited consent to the exercise of
magistrate judge jurisdiction as set forth in the Memorandum
of Understanding between the Wisconsin Department of Justice
and this court.
Motion for Leave to Proceed without Prepayment of the Filing
Prison Litigation Reform Act applies to this case because
McDaniel was incarcerated when he filed his complaint. 28
U.S.C. §1915. That law allows a court to give an
incarcerated plaintiff the ability to proceed with his
lawsuit without prepaying the civil case filing fee, as long
as he meets certain conditions. One of those conditions is
that the plaintiff pay an initial partial filing fee. 28
U.S.C. §1915(b). Once the plaintiff pays the initial
partial filing fee, the court may allow the plaintiff to pay
the balance of the $350 filing fee over time, through
deductions from his prisoner account. Id.
filed a motion to proceed without prepayment of the filing
fee on February 12, 2018, and just days later filed a
certified copy of his prisoner trust account statement. The
statement showed that the average monthly deposit of his
account was $10.83 and the average monthly balance was $0.01.
Based on this information, on February 23, 2018, I ordered
McDaniel to forward to the Clerk of Court $2.17 (20 percent
of $10.83) as an initial partial filing fee. McDaniel then
filed two motions requesting use of his release account to
pay his initial partial filing fee because he does not have
adequate funds in his regular account.
of McDaniel's trust account confirms that he lacks the
assets and means in his regular account to pay the initial
partial filing fee. Given the reason for the release
account-to be used upon the prisoner's release from
custody upon completion of his sentence-and the fact that
McDaniel's trust account shows his lacks the funds to pay
the initial partial filing fee, I will waive the fee. See
Wilson v. Anderson, Case No. 14-C-798, 2014 WL 3671878
at *3 (E.D. Wis. July 23, 2014) (citing Wis. Adm. Code §
DOC 309.466). McDaniel is still obligated to pay the full
filing fee, but he may do so over time pursuant to the
statutory formula set forth in 28 U.S.C. § 1915(b)(2).
See 28 U.S.C. § 1915(b)(1).
Screening of the Complaint
law requires that I 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).
I must dismiss a complaint 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).
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 the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
(citing Twombly, 550 U.S. at 556). 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).
considering whether a complaint states a claim, I follow the
principles set forth in Twombly by, first,
“identifying pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id.
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 caused by the defendant 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). I am obliged to give the 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)).
Eighth Amendment requires the government “to provide
medical care for those whom it is punishing by
incarceration.” Snipes v. Detella, 95 F.3d
586, 590 (7th Cir. 1996) (quoting Estelle, 429 U.S.
at 103). To prevail on an Eighth Amendment claim, a prisoner
must show that prison officials were deliberately indifferent
to his serious medical needs. Estelle, 429 U.S. at
106. A serious medical need is “one that has been
diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize
the necessity for a doctor's attention.” Wynn
v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting
Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
the Eighth Amendment's subjective component, the Supreme
Court has held that deliberate indifference requires that
“the official must both be aware of facts from which
the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the
inference.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). Inadvertent error, negligence, gross negligence
or even ordinary malpractice are insufficient grounds for
invoking the Eighth Amendment. Vance v. Peters, 97
F.3d 987, 992 (7th Cir. 1996); see also Snipes, 95
F.3d at 590-91. Indeed, a prison official has a sufficiently
culpable state of mind when the official “knew of a
substantial risk of harm to the inmate and acted or failed to
act in disregard of that risk.” Norfleet v.
Webster, 439 F.3d 392, 396 (7th ...