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Evans v. Lutsey

United States District Court, E.D. Wisconsin

May 9, 2018

MICHAEL L. EVANS, Plaintiff,
v.
J. LUTSEY, R. LARSON, and J. LABELLE, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2), SCREENING THE COMPLAINT (DKT. NO. 1) AND DISMISSING THE CASE

          HON. PAMELA PEPPER, United States District Judge.

         The plaintiff, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated his civil rights. Dkt. No. 1. This decision resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee, dkt. no. 2, and screens his complaint, dkt. no. 1.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee (Dkt. No. 2)

         The Prison Litigation Reform Act applies to this case because the plaintiff 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.

         On February 9, 2018, the court ordered the plaintiff to pay an initial partial filing fee of $11.46. Dkt. No. 5. The court received that fee from the plaintiff on February 13, 2018. Therefore, the court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee, and will order him to pay the remainder of the filing fee over time in the manner explained at the end of this order.

         II. Screening the Plaintiff's Complaint

         A. Federal Screening Standard

         The law 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 seek 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 state 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. 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). 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)).

         B. The Plaintiff's Allegations

         The plaintiff alleges that he has degenerative disc disease. Dkt. No. 1 at 4. According to the plaintiff, in March 2017, a doctor issued him a back brace to help with sleeping, sitting and walking. Id. The plaintiff explains that his condition causes him “great pain.” Id.

         The plaintiff indicates that in November 2017, he submitted a request to the Health Services Unit, asking for a replacement back brace because his other back brace had broken while he was at the Wisconsin Resource Center (WRC). Id. at 2. According to the plaintiff, defendant Nurse Larson told him that he had to pay a $7.50 copay if he wanted a new back brace. Id. The plaintiff asserts that he told Larson that WRC staff had kept his old back brace because it was broken. Id. He says that he asked Larson to call the WRC health unit to confirm that they had the back brace, but that she allegedly refused. Id. The plaintiff asserts that Larson again told him that he needed to pay the $7.50 copay if he wanted a new back-brace. Id.

         The plaintiff did not pay the copay; instead, he “chose” to file an inmate complaint. Id. The plaintiff alleges that he provided documentation to the complaint examiner from WRC “about the new order for a back brace, due to the old back brace [being] damaged.” Id. at 3. According to the plaintiff, defendant Health Services Unit Manager Lutsey told defendant complaint examiner Labelle that HSU would replace normal wear and tear, but that an inmate must pay a copay for lost or stolen items. Id. The plaintiff also alleges that Lutsey “lied” and said that the plaintiff had told Larson that the back brace was at WRC and that there ...


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