United States District Court, E.D. Wisconsin
JESSE A. DAUL, Plaintiff,
JOHN DOE, Defendant.
DECISION AND ORDER
ADELMAN UNITED STATES DISTRICT JUDGE.
Daul brings this case pro se under 42 U.S.C. §
1983 alleging that John Doe violated his civil rights while
he was incarcerated. This order resolves plaintiff's
motion to proceed without prepayment of the filing fee and
screens his complaint.
Prison Litigation Reform Act (PLRA) applies to this case
because plaintiff was incarcerated when he filed his
complaint. The PLRA gives courts discretion to allow
plaintiffs to proceed with their lawsuits without prepaying
the $350 filing fee, as long as they comply with certain
requirements. 28 U.S.C. § 1915. One of those
requirements is that the plaintiff pay an initial partial
April 24, 2018, plaintiff filed a letter asserting that he is
unable to pay an initial partial filing fee. He explains that
he is currently homeless and unemployed and is not receiving
any assistance for food, housing, or transportation. Because
plaintiff has neither the means nor the assets to pay an
initial partial filing fee, I will waive the requirement that
he pay one. I will grant plaintiff's motion to proceed
without prepayment of the filing fee, but he must pay the
$350 filing fee, as he is able.
law requires that I screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. Id. §
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. § 1915A(b).
general, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
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. To state a plausible claim under
§ 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 deprivation was visited upon
him by a person or persons acting under color of state
law.” Buchanan-Moore v. Milwaukee County, 570
F.3d 824, 827 (7th Cir. 2009).
factual allegations in plaintiff's complaint are as
follows: While incarcerated, he asked a prison nurse
practitioner to examine a “blood filled skin lesion
that was growing and changing atop [a] large
birthmark.” She told him that health services would
photograph the growth and document its progression, but he
feared the growth was cancerous and “pleaded for a
biopsy.” He was taken to an off-site dermatologist,
John Doe, who took “a large chunk from the dead
center” of the growth; left to take “the sample .
. . to the lab”; and returned about five minutes later
with “a trifolded [sic] sheet of paper” that he
handed to “the escort officer, ” who then took
plaintiff back to prison. A couple of days later, plaintiff
received “a single sheet of paper” from health
services that contained neither letterhead nor lab results
and simply said the growth was benign.
seeks damages from John Doe for deliberate indifference to a
serious medical risk. He believes that John Doe did not, in
fact, take his sample to the lab for testing and that the
sheet of paper he received is the same one that John Doe
handed to the escort officer within minutes after his biopsy.
factual allegations in plaintiff's complaint are
insufficient to state a plausible claim, as they allow for no
more than “a sheer possibility that [the] defendant has
acted unlawfully.” Iqbal, 556 U.S. at 678. The
complaint pleads no facts that allow me “to draw the
reasonable inference” that plaintiff has been injured
(he alleges only that his growth may be cancerous)
or that John Doe is responsible, if he has been injured (he
alleges only that John Doe's actions could cause
his cancer to spread, assuming that he has cancer). Plaintiff
concludes that John Doe was deliberately indifferent, but, at
most, his complaint “pleads facts that are
‘merely consistent with'” deliberate
indifference, which is not enough to state a cognizable
claim. Id. (quoting Twombly, 550 U.S. at
the allegation in plaintiff's complaint that John Doe
failed to send his sample to the lab for testing is too
speculative. The complaint offers nothing to support this
conclusion apart from its allegations that John Doe handed a
piece of paper to the escort officer and that plaintiff
received a piece of paper a few days later. Again, these
allegations are merely consistent with plaintiff's
conclusion, which is possible, but hardly plausible. See
John Doe did fail to send plaintiff's sample to
the lab, his conduct would only be actionable if it resulted
in injury to plaintiff. Yet, the complaint alleges only that
plaintiff fears his growth may be cancerous.
Plaintiff's fear of an injury that may never materialize
is an insufficient basis for a claim to relief.
reasons discussed above, IT IS ORDERED that
plaintiff's motion for leave to proceed without
prepayment of the filing fee (Docket No. 2) is
IS FURTHER ORDERED that plaintiff must pay the full
filing fee as he is able. Plaintiff should forward payments
to the Clerk of Court, clearly indicating the case name and
number for this action on each payment.
IS FURTHER ORDERED that this action is
DISMISSED, pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b)(1), for failure to
state a claim on which relief may be granted. The Clerk of
Court shall enter final judgment accordingly and document