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. 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)
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. 9. This decision will screen the
plaintiff's amended complaint and resolve the
Motion for Leave to Proceed without Prepayment of the Filing
Fee (Dkt. Nos. 9, 16)
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).
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.
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
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 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)).
The Plaintiff's Allegations
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.
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.
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
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.
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