United States District Court, E.D. Wisconsin
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.
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
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.
Motion for Leave to Proceed without Prepayment of the Filing
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).
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.
Screening the Plaintiff's 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 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).
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 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)).
The Plaintiff's Allegations
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.
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.
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.
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, ...