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Polega v. Block

United States District Court, E.D. Wisconsin

June 13, 2018

NOAH POLEGA, Plaintiff,
v.
M. BLOCK, RN; C. MARCHANT, HSM; NURSE LARSON, RN/NP; BRIAN FOSTER, WARDEN; DR. GROSSMAN, MD; JOHN DOE #1, MD; JANE DOE #2, HSU STAFF; Defendants.

          DECISION AND ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 9), ALLOWING THE PLAINTIFF TO FILE AN AMENDED COMPLAINT, SCREENING THE AMENDED COMPLAINT (DKT. NO. 15), DENYING AS MOOT THE SECOND MOTION TO PROCEED WITHOUT PREPAYING THE FILNG FEE (DKT. NO. 16)

          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. 9. This decision will screen the plaintiff's amended complaint and resolve the plaintiff's motions.

         I. Motion for Leave to Proceed without Prepayment of the Filing Fee (Dkt. Nos. 9, 16)

         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 July 19, 2017, the court ordered the plaintiff to pay an initial partial filing fee of $18.70. Dkt. No. 11. The court received $19.00 from the plaintiff on August 8, 2017. Accordingly, 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.

         The plaintiff also has filed a second motion for leave to proceed without paying the filing fee. Dkt. No. 16. The court will deny this motion as moot, because the court has granted his first motion.

         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 on 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 filed his original complaint on May 30, 2017. Dkt. No. 1. On May 3, 2018, he filed a notice of proposed amended complaint. Dkt. No. 13. He asked the court not to screen the original complaint. Id. On May 23, 2018, the court received the plaintiff's proposed amended complaint. Dkt. No. 15. Because the court had not yet entered an order screening the original complaint, the court will allow the plaintiff to file the amended complaint. The amended complaint will act as the operative complaint in the case, and the court will screen that complaint.

         The plaintiff asserts that for the past ten years, he's suffered from chronic shoulder pain that results from an old injury. Dkt. No. 15 at 1. On October 14, 2016, the plaintiff transferred to Waupun Correctional Institution (WCI). Id. at 2. Two days later, he submitted a health services request (HSR) complaining that he was unable to sleep because of severe pain in his left shoulder. Id. Four days later-on October 20, 2016-Nurse Larson examined the plaintiff based on his complaint. He asked Larson if she could give him a lower bunk bed restriction-he was having trouble climbing onto the top bunk, and this was causing more severe pain. Id. Larson refused. Id.

         About three weeks later, on November 19, 2016, the plaintiff wrote another HSR to the health services unit (HSU). This time, he complained about the delay in getting an MRI, which he asserts that he was supposed to get “awhile ago.” Id. He told the HSU that his pain was unbearable, that the Tylenol and Naproxen were “inefficient” or “ineffective, ” that climbing into the top bunk was a “chore, ” and that he could barely lift a cup at times. He asked the HSU to speed up the process. Id.

         The next day, defendant Jane Doe #2 (a member of the HSU staff) told the plaintiff that he had an MRI scheduled for the next month, “sooner date await.” Id. The plaintiff asserts that this prolonged his pain for no reason-he should have been evaluated and treated right away. Id.

         A month or so later, on December 12, 2016, the HSU nursing staff saw the plaintiff. Id. But they didn't offer him any medication for the pain. Later that day, defendant Block, a registered nurse, saw the plaintiff. Id. He asked Block for a lower bunk restriction, and explained why he needed it. Id. Block denied the request and just gave him a sling. Id. at 3. Block also denied him any ...


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