United States District Court, E.D. Wisconsin
MICHAEL L. EVANS, Plaintiff,
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
PAMELA PEPPER, United States District Judge.
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.
Motion for Leave to Proceed without Prepayment of the Filing
Fee (Dkt. No. 2)
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.
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.
Screening the Plaintiff's Complaint
Federal Screening Standard
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).
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).
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,
The Plaintiff's Allegations
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.
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.
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