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Nelsen v. O'Brien

United States District Court, E.D. Wisconsin

May 10, 2018

WENDY NELSEN, Plaintiff,
v.
DR. KELLY O'BRIEN, WDOC INSURANCE COMPANY, SCOTT WALKER, JOHN LISTNER, JAMES GREEN/GREER, DR. DAVID BURNETT, NP LEMMENS, and WARDEN DEANNE SCHAUB[1], Defendants.

          DECISION AND ORDER GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 7) AND SCREENING THE COMPLAINT (DKT. NO. 1)

          HON. PAMELA PEPPER, United States District Judge

         The plaintiff was a Wisconsin state prisoner at the time she filed her complaint.[2] Representing herself, the plaintiff filed a complaint under 42 U.S.C. §1983, alleging that the defendants violated her civil rights at the Taycheedah Correctional Institution (“TCI”). Dkt. No. 1. This order resolves the plaintiff's motion for leave to proceed without prepayment of the filing fee and screens the plaintiff's complaint.

         I. MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 7)

         The Prison Litigation Reform Act (“PLRA”) applies to this case, because the plaintiff was incarcerated when she filed the complaint. 28 U.S.C. §1915. The law allows an incarcerated plaintiff to proceed with a lawsuit in federal court without prepaying the civil case filing fee, as long as she meets certain conditions. Id. One of those conditions is a requirement 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 her prisoner account. Id.

         The court issued an order, requiring the plaintiff to pay an initial partial filing fee of $23.49. Dkt. No. 5. The court received that payment from the plaintiff on February 21, 2017. Therefore, the court will grant the plaintiff's motion for leave to proceed without prepayment of the filing fee.

         The court allows plaintiff who are in custody to pay the balance of their $350 filing fee over time, out of their prisoner accounts. Because the plaintiff has been out of custody for a couple of months, the court will allow her to pay the $326.51 balance of her filing fee as she is able.

         II. SCREENING OF THE PLAINTIFF'S COMPLAINT

         A. Standard for Screening Complaints

         The PLRA requires federal courts 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 may dismiss a case, or part of it, if the claims alleged are “frivolous or malicious, ” fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §1915(e)(2)(B).

         To state a claim under the federal notice pleading system, the plaintiff must provide a “short and plain statement of the claim showing that [she] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). The complaint need not plead specific facts, and need only provide “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Labels and conclusions” or a “formulaic recitation of the elements of a cause of action” will not do. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

         The factual content of the complaint must allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Allegations must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Factual allegations, when accepted as true, must state a claim that is “plausible on its face.” Iqbal, 556 U.S. at 678.

         Federal courts follow the two-step analysis in Twombly to determine whether a complaint states a claim. Id. at 679. First, the court determines whether the plaintiff's legal conclusions are supported by factual allegations. Id. Legal conclusions not supported by facts “are not entitled to the assumption of truth.” Id. Second, the court determines whether the well-pleaded factual allegations “plausibly give rise to an entitlement to relief.” Id. The court gives pro se 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. Facts Alleged in the Complaint

         The plaintiff was an inmate at TCI. Dkt. No. 1 at 1. Defendant Kelly O'Brien is a doctor at TCI, id. at 2; defendant Scott Walker is governor of Wisconsin, id. at 3; defendant WDOC Insurance Company is, according to the plaintiff, the company that insures employees of the Wisconsin Department of Corrections, id. at 2; defendant John Listscher[3] is secretary of the Department of Corrections (“DOC”) id., at 3; defendant David Burnett, M.D. is medical director for the Bureau of Health Services (“BHS”), id.; defendant N.P. Lemmens is a nurse practitioner at TCI, id.; and the complaint asserts that defendant Deanne Schaub was the warden at TCI, id. at 4.[4]

         In 2006, inmates at TCI brought a class action lawsuit against TCI for insufficient medical care. Id. at 5. The plaintiff says that the case settled in 2015, and that TCI staff “cleaned up” their act only long enough to “get the Judge Randa[5] and the ACLU off its case.” Id. The plaintiff ...


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