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Howard v. Grieser

United States District Court, E.D. Wisconsin

June 13, 2018

JOSHUA HOWARD, Plaintiff,
v.
JOHN GRIESER, ANN LARSON, CATHY RIETZ, and BELINDA SCHRUBBE, Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND SCREENING THE COMPLAINT (DKT. NO. 1)

          HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE

         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. Under that law, the court must screen the plaintiff's complaint to determine whether the plaintiff states claims with which he may proceed. In addition to filing a complaint, the plaintiff filed a motion for leave to proceed without prepayment of the filing fee. Dkt. No. 2. This decision screens the complaint and resolves the plaintiff's motion.

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

         The PLRA provides that a court may allow an incarcerated plaintiff to proceed with his lawsuit 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 April 5, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $19.06. Dkt. No. 8. The court received that amount from the plaintiff on July 31, 2017. The court will grant the plaintiff's motion to proceed without prepayment of the filing fee. The court will order the plaintiff to pay the remainder of the filing fee over time in the manner explained at the end of this decision.

         II. Screening the Plaintiff's 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 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 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 with a claim that his civil rights were violated 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 Plaintiff's Allegations

         The plaintiff explains that he suffers from a chronic back injury that periodically causes his back to go out, leaving him unable to move. Dkt. No. 1 at 3. When this happens, he is unable to leave his cell for meals or medication and must rely on the cell hall sergeant and/or health services staff to place him on lay-in or sick-cell status, so that someone will bring him his meals and medications. Id.

         On January 3, 2011, the plaintiff woke in severe pain and he was unable to move. Id. The plaintiff asked an officer who walked by his cell to ask defendant Sergeant John Grieser to call the health services unit (HSU). Id. Grieser called HSU and reported the plaintiff's condition to defendant Nurse Ann Larson. Id. According to the plaintiff, Larson instructed Grieser to tell the plaintiff to fill out a health services request (HSR) and put it in the HSU mailbox. Id. The plaintiff states that, because he could not move, he was obviously unable to comply. Id. He states that Larson refused to treat him until HSU received an HSR. Id.

         The plaintiff believes Larson refused to treat him at defendant Belinda Schrubbe's direction. Id. He alleges that Schrubbe has a practice of refusing to treat inmates who file complaints against HSU, and he says that prior to this incident, he had filed thirty-one complaints against HSU, including one against Schrubbe. Id.

         The plaintiff states that Grieser placed him on lay-in status for four days. Id. at 4. According to the plaintiff, the lay-in policy requires that HSU see an inmate on the third consecutive day of lay-in, but the plaintiff asserts that HSU never saw him, ...


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