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Whitcomb v. Manlove

United States District Court, E.D. Wisconsin

May 14, 2018

ANDREW T. WHITCOMB, Plaintiff,
v.
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

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE.

         The 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.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee

         The 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. §1915(b).

         On 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.

         II. Screening the Plaintiffs Complaint

         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, 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 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, 106 (1976)).

         A. The Plaintiffs Allegations

         The 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.

         On 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.

         The 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?" Id.

         By 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." Id.

         The 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 ...


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