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Curlee v. Callahan

United States District Court, E.D. Wisconsin

May 23, 2018

TYRONE CURLEE, Plaintiff,
v.
RACHELL E CALLAHAN, JOHN MATZ, OFFICER TODD CHRISTOPHERSON, ARAMARK FOOD SERVICE, GAIL DOE, SERGEANT WEISSE, NURSE BEVERLY, NURSE KATRINA, NURSE BERRY, DOCTOR KEN, NURSE CARRIE, DOCTOR SHARPIRO, DEPUTY VIERQUTZ, and JOHN AND JANE DOES, Defendants.

          ORDER

          LYNN ADELMAN, UNITED STATES DISTRICT JUDGE

         Plaintiff Tyrone Curlee, a state prisoner who is representing himself, filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights by denying him adequate medical care. Docket No. 1. He also filed a motion for leave to proceed without prepayment of the filing fee. Docket No. 2.

         This case was originally assigned to U.S. Magistrate Judge Duffin. However, because not all parties have had the opportunity to consent to magistrate judge jurisdiction, the case was reassigned to a District Judge for screening.

         Plaintiff has been assessed and paid an initial partial filing fee of $20.50. See 28 U.S.C. § 1915(b)(1). Therefore, I will grant his motion to proceed without prepayment of the filing fee.

         Turning to plaintiff's complaint, I am required 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). I must dismiss a complaint or portion thereof if the prisoner has raised 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 cognizable claim under the federal notice pleading system, plaintiff is required to provide a “short and plain statement of the claim showing that [he] is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary for plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a complaint that offers mere “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). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when [] plaintiff pleads factual content that allows the court to draw the reasonable inference that [] defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint's allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).

         In considering whether a complaint states a claim, I follow the principles set forth in Twombly by, first, “identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be supported by factual allegations. Id. If there are well-pleaded factual allegations, the court must, second, “assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

         To state a claim for relief under 42 U.S.C. § 1983, plaintiff must allege that: 1) he was deprived of a right secured by the Constitution or laws of the United States; and 2) the deprivation was caused by defendants acting under the 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). I am obliged to give 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)).

         I. ALLEGATIONS

         At all times relevant, plaintiff was housed in, and defendants were employed or conducted business with, the Winnebago County Jail. Plaintiff alleges that in June 2016 he suffered a serious knee injury and underwent surgery. Around September 14, 2016, plaintiff submitted a health services request form (HSU form) noting that he did not receive bags of ice two times daily, as needed, for his knee and ankle as prescribed for September 9-11, 2016. He stated that his knee and ankle were “severely swollen and in pain” and that “he shouldn't have to continue writing for proper pain medication, and ice.” Docket No. 1, ¶¶ 22-23. Plaintiff states that Defendant APNP Katrina's response to the request was that “she had ordered ice twice daily for two weeks, that even if it came as a bag of water, just use it, it's better than nothing.” Id., ¶ 24.

         On September 28, 2016, plaintiff submitted an HSU form complaining of burning in his knee. Plaintiff states that Katrina's response to this request was “you are using ice, and taking ibuprofen, has your pain changed? Is it worse or different than on September 14, 2016?” Id., ¶ 25.

         On September 29, 2016, plaintiff submitted an HSU form asking to be seen by a nurse for his knee. Plaintiff states that the nurse responded.

         On October 14, 2016, plaintiff submitted an HSU form asking “if he could continue to receive ice, as needed two times daily, as it was what was keeping the pain down.” Id., ¶ 27. Plaintiff states that defendant RN Carrie responded that “Dr. Shapiro did not give any new orders or any follow-up instructions; that the ice [was] for his recent injuries here in the jail; that Dr. Shapiro did not send anything back with plaintiff stating any new complications.” Id., ¶ 28. Plaintiff notes that the response was signed by Katrina.

         On October 14, 2016, plaintiff sent an HSU form for renewal of his ice and information on his upcoming medications. Plaintiff states that Defendant RN Beverly responded on October 20, 2016, that “funds are being deducted the day you are seen, that when meds are ordered and they come in, you're charged at that time.” Id., ΒΆ 29. He asserts that she also stated she renewed ...


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