United States District Court, E.D. Wisconsin
ANDREW T. WHITCOMB, Plaintiff,
DR. JEFFREY MANLOVE, et ah, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 5),
SCREENING PLAINTIFF'S COMPLAINT, AND DIRECTING PLAINTIFF
TO FILE AN AMENDED COMPLAINT
PAMELA PEPPER UNITED STATES DISTRICT JUDGE.
plaintiff, a Wisconsin state prisoner who is representing
himself, filed this lawsuit under 42 U.S.C. §1983,
alleging that the defendants violated his constitutional
rights relating to the medical treatment he received at
Waupun Correctional Institution (WCI). Dkt. No. 1. He later
filed a motion for leave to proceed without prepayment of the
filing fee, dkt. no. 5, and a copy of his prisoner trust
account statement, dkt. no. 6. This order resolves his motion
and screens his complaint.
Motion for Leave to Proceed without Prepayment of the Filing
Prison Litigation Reform Act (PLRA) applies to this case
because the plaintiff was incarcerated when he filed his
complaint. 28 U.S.C. §1915. The PLRA allows a court to
give an incarcerated plaintiff the ability to proceed with
his case without prepaying the case filing fee, as long as he
meets certain conditions. One of those conditions is that the
plaintiff must pay an initial partial filing fee. 28 U.S.C.
August 15, 2016, the court ordered the plaintiff to pay an
initial partial filing fee of $1.44. Dkt. No. 7. When the
plaintiff did not pay that fee, the court entered an order to
show cause, dkt. no. 8, and ultimately an order allowing the
plaintiff to pay the initial partial filing fee from his
release account, dkt. no. 11. The court received the initial
partial filing fee on January 3, 2017. The court will grant
the plaintiff's motion for leave to proceed without
prepayment of the filing fee, and will require the plaintiff
to pay the remainder of the filing fee over time as set forth
at the end of this decision.
Screening the Plaintiffs Complaint
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, 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).
proceed 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. 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). 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 Plaintiffs Allegations
plaintiff has sued the following defendants: Dr. Manlove,
Stadmueller-HSU manager, Nurse Gunderson, Nurse Gwendolyn,
Nurse Cartier, Nurse Gail, Nurse Slinger, Nurse Howell, Nurse
Larson, Nurse Jenson, William Pollard, Brian Foster, and
John/Jane Does 1-5. Dkt. No. 1 at 1.
November 10, 2015, the plaintiff was on his way back to his
cell hall from recreation when he felt his left knee buckle,
pop out of place and tear. Dkt. No. 1 at 3. The plaintiff was
taken to the Health Services Unit (HSU), where Nurse Jenson
looked at his knee. Id. Nurse Jenson sent him back
to his cell with a brace and crutches. Id. at 3-4.
plaintiff saw a doctor on December 2, 2015; the doctor
ordered an MRI of the plaintiff's left knee. Id.
at 4. Around December 7, 2015, the plaintiff wrote to the HSU
asking if his MRI had been ordered or scheduled. Id.
He received a response the next day that the MRI was being
scheduled "per order written 12-2-15." Id.
Three weeks passed; on December 23, 2015, the plaintiff again
wrote to the HSU and said, "can you please tell me if my
MRI has been scheduled yet, is scheduled for sometime in
January 4, 2016, the plaintiff still had not been seen or
received proper treatment, so he submitted another health
service request asking when he would be seen. Id. He
explained that his knee was getting worse, and that the pain
was unbearable. Id. The next day, the plaintiff
received a response "saying this month."
plaintiff was taken to Waupun Memorial Hospital on January
14, 2016 for the MRI. Id. He waited three days, then
wrote to the HSU to ask about the results. Id. The
HSU wrote back: "MRI L. Knee; complete tear of ACL
graft, no meniscal tear or cartilage defect, post op
appearance of petteal [sp?] tendon." Id. The
plaintiff wrote to the HSU again, asking about the results of
the tests, and the HSU responded ...