United States District Court, E.D. Wisconsin
ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO
PROCEED WITHOUT PREPAYMENT OF THE FILING FEE (DKT. NO. 2) AND
SCREENING THE COMPLAINT
PAMELA PEPPER United States District Judge
plaintiff is a Wisconsin state prisoner incarcerated at
Waupun Correctional Institution (WCI), and is representing
himself. He filed a complaint in the Western District of
Wisconsin, alleging that the defendants were deliberately
indifferent to his serious medical need in violation of the
Eighth Amendment, and raising a state law tort claim. Dkt.
No. 1. This order resolves the plaintiff's motion for
leave to proceed without prepaying the filing fee, dkt. no.
2, and screens the complaint.
MOTION FOR LEAVE TO PROCEED WITHOUT PREPAYMENT OF THE FILING
FEE (DKT. NO. 2)
Prison Litigation Reform Act (“PLRA”) applies to
this case, because the plaintiff was incarcerated when he
filed his complaint. 28 U.S.C. §1915. The law allows a
court to give an incarcerated plaintiff the ability to
proceed with his lawsuit without pre-paying the filing fee,
as long as he meets certain conditions. Id. One of
those conditions is a requirement that the plaintiff must pay
an initial partial filing fee. 28 U.S.C. §1915(b). Once
the plaintiff pays that partial filing fee, the court may
allow the plaintiff to pay the balance of the $350 filing fee
over time, through deductions from his prisoner account.
August 15, 2017, Magistrate Judge Oppeneer ordered the
plaintiff to pay an initial partial filing fee of $18.00; the
court received that payment on August 21, 2017. Therefore,
the court will grant the plaintiff's motion for leave to
proceed without prepayment of the filing fee and will allow
the plaintiff to pay the balance of the $350 filing fee over
time from his prisoner account, as described at the end of
the this order.
SCREENING OF THE PLAINTIFF'S COMPLAINT
Standard for Screening Complaints
PLRA requires federal courts 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). A court must dismiss a complaint, or part of
it, if a 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. 28
is legally frivolous when it lacks an arguable basis either
in law or in fact. Denton v. Hernandez, 504 U.S. 25,
31 (1992); Neitzke v. Williams, 490 U.S. 319, 325
(1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
895, 900 (7th Cir. 1997). A court may dismiss a claim as
frivolous where it is based on an indisputably meritless
legal theory or where the factual contentions are clearly
baseless. Neitzke, 490 U.S. at 327.
“Malicious, ” although sometimes treated as a
synonym for “frivolous, ” “is more usefully
construed as intended to harass.” Lindell v.
McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003)
state a cognizable claim under the federal notice pleading
system, a plaintiff is required to provide a “short and
plain statement of the claim showing that [he] is entitled to
relief[.]” Fed.R.Civ.P. 8(a)(2). It is not necessary
for a plaintiff to plead specific facts and his statement
need only “give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint that offers mere “labels and conclusions,
” however, or a “formulaic recitation of the
elements of a cause of action will not do.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 555). To state a claim, a
complaint must contain sufficient factual matter, accepted as
true, “that is plausible on its face.”
Id. (quoting Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). A complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
considering whether a complaint states a claim, courts follow
the two-step process in Twombly. First, the court
“identif[ies] pleadings that, because they are no more
than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. Legal
conclusions must be supported by factual allegations.
Id. If there are well-pleaded factual allegations,
the court then must “assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Id. Finally, a court is obliged to
give 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,
The Plaintiff's Allegations
plaintiff alleges that on September 2, 2015, he was taken to
the University of Wisconsin podiatry clinic for a follow-up
on his plantar fasciitis. Dkt. No. 1 at 3. The podiatrist
examined him, and recommended several forms of
treatment-application of a gel four times a day for six
months, radiographic images of his ankle, daily wear of
orthotics/ankle braces, referral for a consult regarding his
left ankle, and “a new pair of high top athletic style
shoes as current pair are worn.” Id. at 3-4.
Within two weeks of his podiatry evaluation, a nurse
practitioner at WCI forwarded forwarded to defendant Ann
Scarpita, a special needs coordinator at WCI, a September 8,
2015 request for a new pair of shoes. Id. Scarpita
responded that the plaintiff was “supplied with boots
from institution with high top for support, ” and that
inmates could purchase high top tennis shoes from an outside
vendor through a catalog. Id.
couple of months later, on November 14, 2015, the plaintiff
submitted a “reasonable modification/accommodation
request” to defendant Nicole Kamphuis, an accommodation
coordinator at WCI. Id. at 5. He asked to be able to
order shoes from an outside vendor, saying that the shoes
offered in the canteen catalog did not meet his medical needs
(high tops, size 12, EEEE width, with shock absorption
capability). Id. Kamphuis responded that this